Legal Professionals Must Also Remember Human Attitudes

Where is your energy best spent in resolving the law-related issues you face? Can you redress the injustices this article is about to describe by becoming a lawyer instead of something else?

1. The Right to Screw Up


When you were young, you probably knew some kids who were always being made fun of. If you laughed at them long enough, they got mad and went off to tell the grownups on you.

In a way, nothing has changed. As it turns out, you should have been nicer to those little twerps, because they grew up and became attorneys, and now they're pissed. They're no more tolerant of your laughter today than they were 30 years earlier, when they were kids. In their daily business, they'll trample, without hesitation, on your world's happiness. To them, blithe living is a Black Hole; it's inscrutable, and therefore meaningless.

The practice of law, like leprosy, is totally serious. But the seriousness does not persuade me that either the plague or the profession represents the way things should be. Any kid out of law school can hope to impress people with the glint in the eyes and the set of the jaw. It takes a champ, to back up and say, "Hey, I'd prefer to laugh."

Lawyers will be quick to object that they are among the wittiest members of our society. And it's true, for some of them. But after a while, you start to get a feel for what attorneys think is funny.

For example, do you remember how, in the old films, James Bond's car had a rotating license plate with numbers from different countries? When someone would copy down his number, he'd just rotate to another one. Well, if lawyers had written that part, instead of seeing our hero in high-speed races across international frontiers to get away from the bad guys, we would have watched him rotate to the "Handicapped" plate while parking at a fire hydrant.

It's not that most lawyers like fun when it involves the risk of liability, as in high-speed races, or when it comes in the form of gaiety and silliness. They prefer word plays and at least some of the other things that pass for wit. They like jokes in which someone gets shafted. And they especially like a story about a good screwup.

But it's not fair for them to laugh at screw-ups. The problem for humor - or, depending on how you look at it, for the law itself - is that the law can't take a joke. When you screw up, you may do something very funny, but it may also be grounds for a lawsuit. This is why lawyers don't like practical jokes.

There's a place for errors in every-day life. And not just the funny ones. Even the painful ones are essential to progress. People who look like they're mistaken have a nasty habit of turning out to be right some-times. It's easy to say that we learn from our mistakes. But it's also easy to condemn someone for one foul-up. Lawyers, in particular, are paid to make everything out of one mistake and ignore the progress that the defendant has been making and the good that s/he has been doing otherwise.

The law in America, as it's now taught and practiced acts as though we have an infinite amount of leeway to attack those who get out there and try to accomplish something. And that's wrong. We like screw-ups, and we need them.

2. The Right to Live According to an Unwritten Code

The law insists that you "get it in writing.'' That's wise, of course, to prove that there was an agreement and to help you avoid misunderstandings. But let's not pretend that contracts make the world go 'round.

We observe those understandings without being forced to. Nobody's going to sue us for breaking them. They're just part of an unwritten code of civilized behavior that almost everyone follows, century after century.

Naturally, it's the court's job to write down the facts of a case. When you go into the law library, you see that they've produced an awful lot of books full of facts, and yet, somehow, there are always new cases that haven't occurred before. When you go too far with the notion that what counts is the written law, then you allow your bad people to insist that, if it's not in the written law, they don't have to worry about it. You also have the unfortunate experience of seeing lawyers and written documents intrude in places where they're perhaps better left out.

And men the lawyers arrive, yours and his/hers, and suddenly everyone's attention is on everything that can go wrong. Admit it: When you compare what you're trying to accomplish in this marriage against what you're doing with these lawyers, it's as though you're running in two opposite directions simultaneously. It's worse than that. One matrimonial lawyer may have been correct in saying that "[Clients] don't realize that prenuptial agreements don't kill romance. They just suspend it for a short time." But even if he's right, the real question is whether the law knows exactly what it is doing when it encourages you to suspend your romance.

We've got another Black Hole here. We let lawyers rush in and talk about how their antenuptial agreements don't really disturb love. The implication, of course, is that lawyers understand which things do and don't disturb love.

But that's nonsense. Humans certainly don't understand love. We do some of the damnedest things to find it, and when we do have it, we do even sillier things to lose it. It may be that love is just a little blank spot in the law's understanding of reality. Or it may be, instead, that when you step into this Black Hole, you find that there are whole galaxies within the realm of love, enough to keep you busy exploring for the rest of your life. This is certainly how people talk when they're in love. Who are we to imagine that anyone, and especially lawyers, will ever understand it?

It's one thing for lawyers to set out rules that describe the necessary limits of conduct for everyone, whether they're lovers or not. Thus, for example, it's reasonable to prohibit murder under almost any circumstances. But that's an easy example. The closer the lawyers come to disturbing things that they don't understand, the more dangerous it becomes to let them go on with their endless written rules and arrangements. They don't know what effect they'll have, and they lack the self-restraint to know when to stop.

We've got an ambitious legal system. It sticks its nose into everything. But who says that's how it's got to be? It's not at all clear that its nosiness is really doing us a big favor. To use the present example, everyone recognizes that divorce is often more of an emotional problem than a legal problem. Even the justice system treats divorce that way, -putting it into a separate court of its own. So how about the thought that it really doesn't belong in the hands of judges and lawyers at all?

Cooperation and mutual concern have always counted for more, in everyday contacts among human beings, than have written documents and lawyers, with their odor of confrontation. Sometimes, obviously, there's no special concern between people. But in a surprising number of the most important cases, there is. Your mom, for example, didn't sign up anywhere to raise you. Nobody beat the businesspeople of bygone America until they admitted, sobbing, mat "the customer is always right." These people arrived at their wonderful attitudes voluntarily, out of a mix of common sense, duty, and care.

It's not that there is no place for written laws or agreements. There's plenty of need for them, without pretending that they can capture all of human experience.

Naturally, when you have a tool that explains a certain kind of reality, you can be tempted to apply it to everything. For example, physicists may be right in saying that the world consists of subatomic particles, just as lawyers say that everything is, or should be, governed by principles of law.

But that's not what we want. Now, and then, and forever, it will always be crazy to give, to the law, such unstoppable power to rule things it does not understand.