The Lawyer and his Two Sides

What does a lawyer do and how he does it? But right now some of the specific things a lawyer does in his daily practice and the kind of professional life that he leads are taken up. A part of the difficulty in describing what a lawyer's life is like comes from the fact that much of what we "know" about lawyers just isn't so. With respect to doctors, for instance, the picture in the mind of the public corresponds fairly accurately with what the doctor actually does, for in our normal family life we come into rather close and frequent contact with doctors. But with lawyers we are not so close. The conception is apt to be distorted. We may picture the lawyer as a leading actor in a dramatic criminal trial, perhaps a murder trial, little realizing that only a small percentage of lawyers have any criminal practice, as it is called, at all. So, at the very outset, let's wipe the slate clean, as it were, of preconceived notions of what a lawyer does, and approach the whole subject as we would a problem in nuclear physics, with an open mind and an eagerness to learn.

At the very beginning we should have some notion of what the expression "the law" means. The trouble is that it means many different things. Trying to tell one what it means is like trying to tell someone from outer space what "life" on this planet really is like. So it is with the law. We have all kinds of definitions of the law; in fact, we have all kinds of laws.


There's the law of gravity, for instance. That's not our kind of law. There are also laws of morals, and laws of economics, such as the law of supply and demand, and many others. But you won't "practice" these laws. The kind of law you will practice deals with the settlement of actual, or likely controversies between people. Even in this rather narrow human- relations field, people use the term "law" differently.

Let's consider a simple case, involving a situation we all know about, in fact something we've all done many times, so that we can see what the expression "the law" may mean with regard to a particular situation. Let's say that we go onto the land of another without his permission. We take a short cut across a vacant lot that doesn't belong to us. Strictly speaking, we have no "right" to do so. ("Right" is an important legal word.) That land belongs to another, and he is entitled to keep it under his exclusive control. The technical name for what we have done is a "trespass"; so, in the words of the lawyers, we have "committed a trespass." What is "the law" concerning this kind of trespass?

It all depends upon what you mean by "the law." Some people think of law in terms of morals. You might have heard the expression "the moral law." These people might say you have broken no law because what you did isn't a moral wrong. Others are interested more in legal history. (The history of land trespass is a long one; in medieval England, for instance, there was much trouble with poachers. They were trespassers and they were very severely punished.) People interested in legal history would not, of course, demand for you the punishment formerly given to poachers, but they certainly would not agree with the first group that you had done no "wrong." Still others think of the law in terms of its social implications, its bearing upon our human society today, and our relations with our neighbors. Whether or not your trespass was a "wrong" to these people would depend upon how seriously your conduct had affected your relationship with your fellow men in this area.

"The law," then, has many meanings. It refers to many different kinds of things, just as the word "music" does. There's not much similarity between Beethoven's Fifth Symphony and the "Yellow Cat Blues," yet each is called music by many people, though not without violent dissent from a few. But we are not interested solely in "the law" as an abstraction or a philosophy. We are going to "practice" law. In this aspect the words take on entirely different meanings. The word "practice," itself, brings to mind a repetitive task, a daily routine. What, in his daily routine, does a lawyer do when he "practices" law?

Any thumbnail definition is dangerous, yet we have to begin somewhere. Much of practicing law is forecasting. It is predicting for your client the legal consequences of his (or another's) acts. In the law this is called counseling. (A lawyer's professional card, by the way, often describes him as Attorney and "Counselor.") Let's look for a moment at some of a lawyer's forecasting. As we take them up, one after another, notice the different kinds of things the lawyer is considering as he questions his client and reflects on the case. This will give you an indication of the nature of his problem in each instance and the kind of knowledge he must have to reach a correct solution.

In the first case the man who comes to seek your advice has been struck by an automobile as he was crossing the street. When he comes to you he wants to know what his "rights" are. Can he sue? (Sure. He can always sue, in the sense that the doors of the courthouse are always open to those who wish to sue. But the real question for his lawyer is whether, if he does sue, he will recover anything. That is what you are retained to tell him.) On the other hand, he may himself have been the driver who hit a pedestrian. Can he be sued? (Again, of course he can. But will he be liable, legally speaking? Will he have to pay damages?)

These are what lawyers call negligence cases, because someone (either the pedestrian or the driver, in the example used) has probably been careless, or "negligent," as the law puts it. These negligence cases are of many, many kinds. The airplane accidents you read about usually result in negligence suits in the courts. So do the automobile accidents and the train accidents. When someone is hurt on the freshly waxed floor of a supermarket, or trips on a theater rug, we get another kind of negligence case. These negligence cases, you see, involve people's hurts, injuries, and accidents. They come to you after the thing has happened, and they seek your counsel. Before giving advice or counsel, in these situations you have to find out many things, called by lawyers the "surrounding circumstances." As you yourself can plainly see, it might make a difference, as to one's liability to pay damages for the accident, whether one car involved was speeding or was driven by a drunken driver, whether the accident happened at night or in broad daylight, whether, if a pedestrian has been injured, he was crossing at a crosswalk or whether he was jaywalking.

Why must you find out all of these things? You have to, because your advice is sought on the law to be applied in the circumstances of the accident and because the applicable law will depend upon the facts. This is a lesson the lawyer learns early in life: What the law is depends upon what the facts are. If, for instance, the injured pedestrian had darted into the street from between two parked cars, in the middle of the block, and at night to boot, his chances of recovery against the driver would normally be so remote that it would be a waste of time (his and the court's) and money (his and the public's, for trials cost taxpayers a lot) to sue the driver.

But there is another type of counseling done by a lawyer even more often. It is the giving of advice as to whether or not a person should do something in the first place, such as whether or not he should sign a contract, or whether (in a business association) he should form a partnership or a corporation.

Here, you see, the client has not yet acted, and he comes to you wanting to know whether he should act (or not) and, if he should act, how he should do it. Take the partnership- corporation question, for instance. Some of the considerations involved in making a choice between the two would be: How trustworthy are the associates? Why is this more important in the one case than in the other? Because if they form a partnership, the law is that each partner can speak for the whole group, and he can enter into a contract for which everyone in the group will be individually responsible. So, if one partner is a little crooked, or just a little stupid, he could ruin all the others. But in a corporation, on the other hand, the individual owners (called the "stockholders") do not run the business.

Only the directors, who are elected by the stockholders, can do that. In the matter of taxes there is also an important difference between the two types of organizations. If the partners already have substantial incomes, the profits from the partnership (which are added to the incomes they already have) may force them to pay much higher taxes than they would have to pay if they were merely stockholders in a corporation. No one likes to pay taxes. In fact, you will find that much of your business counseling will relate to the amount of taxes to be paid if the businessman does business in one way as compared with another.

So, much of the lawyer's life is spent in advising others what to do. We have looked at two small areas, only, of vast fields. We could go on and on giving examples of this. People come to the lawyer for advice as to every conceivable aspect of their lives, personal as well as professional. A lawyer hears much about marital troubles, about family problems, and problems with children.

Couples who have adopted children come to him in a panic when, as sometimes happens, the natural parents change their minds and try to get the child back. Older people come to him when their lives are just about over. They want to dispose of their things in a certain way. They ask all kinds of questions, sometimes about disinheriting those who, though close to them by blood, have been mean to them over the years. Sometimes a tenant farmer and his wife will come in; they were promised the farm by the old folks for taking care of it, and then, for these many years, but now the old folks have passed away without leaving a will giving it to them, and one of the kin is claiming it. Who gets it?

On and on we could go, describing business problems, taxation problems, difficulties between management and labor, controversies between the citizen and his government, such as when the State wants to condemn his land, and even between governments, as when one State wants most of the water of a river flowing in two, or more States. All of these cases involve controversies, the frictions that develop when human beings live close to one another, and when they covet the things belonging to another. It is the lawyer's problem to solve these controversies. In most cases, he does it by applying his knowledge of “the law." But there's a lot of knowledge of human nature involved, also. Do you remember the story of the lawyer who was called upon to divide a great ranch between two sons who fought over it after the father passed away? They finally agreed to take their problem to a local lawyer who was known for his fairness and his knowledge of the law. He listened carefully to their dispute, for each had a side to tell, each had some very valid claims, as well as some not quite so valid. Finally he gave them his opinion.

They could, he said, go to court if they wished. He could not predict the outcome, for it would depend upon whether a jury believed mostly the story of the elder son or that of the younger. A trial would take a long time and would cost a great deal of money. But, he said, if you will let me be the jury, and the judge, at the same time, I can settle it fairly for you. The brothers agreed to abide by the lawyer's decision, and waited, on pins and needles, for him to speak. This, he said, is what you shall do: elder son, you may make the division of the ranch. Divide it, as evenly as you can, into two parcels.” Each parcel should have a fair share of the water, of the pasture, and of the woods.” The face of John, the younger son, darkened. This was no fair way to settle things. His older brother would take all the best. He had always done so, ever since they were kids. But the lawyer motioned him to be quiet, to hear him out. "And you, John," he added, addressing the younger, "you shall have the first choice between the two parcels."

This, then, is a good example of a large part of the lawyer's life, hearing disputes and controversies of all kinds, and applying to their solution his knowledge of the law and of people. His success or his failure will depend upon how thoroughly he knows each.

Sometimes, however, despite all that a lawyer is able to do, the matter must be settled in court. One of the parties may be stubborn or willful or greedy. In that case there will have to be a trial in court. This, of course, is the most highly publicized part of a lawyer's work, especially the trial of criminal cases, where people's lives and liberties are at stake, and where hatred and love and other powerful emotional forces are involved. Many people, in fact, think of a lawyer's work as mostly trial work. That is true of some. But many lawyers never try cases at all. They counsel, exclusively, leaving the trial work to lawyers who do a great deal of it, who really specialize in such practice.

Many lawyers, do some trial work. They may be practicing by themselves, and thus have to do whatever routine trial work comes along. Of course, even in this situation, if a case of great complexity and importance, either from a legal or personal or financial standpoint, comes to them for trial they will urge their clients to retain specialists in trial work. Another situation in which a lawyer who does not try many cases will be called upon to do so is when the client wants his services, and his alone. This often happens, even when the lawyer is associated with a firm having trial experts. In such case, you may be interested to know, if the lawyer feels that the forthcoming trial is beyond his capabilities he permits no considerations of false pride to prevent him from frankly informing his client of his own inadequacies as respects this particular case. There is no shame in not being an expert in everything. But there is real shame in trying to hide it at the expense of one who has put his trust in you, your client.

So, for one reason or another, most lawyers do try some cases and many try a great many cases. But often the judgment in the trial court does not end the matter. The case may be "appealed." An appeal comes about in this way: When the judgment is rendered in the first court that hears the case (called the "trial" court), one party will win and the other will lose. Sometimes the losing party will feel that the trial court committed an error of some kind and that that is why he lost. Maybe the trial judge, he believes, admitted evidence that, for one reason or another, he shouldn't have. Maybe he applied a law that was not meant to apply to this situation, or maybe he committed some other error. If this is the loser's conviction he will appeal to a higher court, called an "appellate" court. (The Supreme Court of the United States, in Washington, D.C., is such a court, as are the highest courts in each State, which, likewise, are usually called the "Supreme Court.") The purpose of such courts is to correct errors, not to hear trials. These courts have no witnesses appearing before them, and they listen to no testimony. But they do consider very carefully what happened in the trial court. Each of the Justices of a Supreme Court is furnished with a printed summary of the testimony taken at the trial (this is called the "record") and, in addition, printed booklets (these are called the "briefs") containing the legal arguments. The loser, who is the party appealing, will attempt to show where the legal error was committed in the trial court. The other party will attempt to show either that there was no error at all or, if so, it was only a trivial error that did not result in a bad decision, or, as the lawyers say, did not result in a "miscarriage of justice." After the Justices of the highest Court have studied the record and the briefs, they will hear the oral arguments of the lawyers for the two parties and, in time, will render their decision. This will be in written form and will be printed in a book. These "opinions," as they are called, will establish the law for the State, or the United States (depending upon which court has ruled), on that particular legal question. Just as in the trial court, one side will win and the other will lose. If the winner in the trial court also wins on appeal the case is "affirmed," but if there really was error the lower court is "reversed" and often the case is sent back for a new trial.

The preparation of briefs for a Supreme Court and the making of an oral argument before the Court call for a great deal of knowledge and skill on the part of the lawyer. The legal points are usually complex ones or they wouldn't be in the Supreme Court, for there is very little probability of the trial court's having made a serious error on a simple legal question. Moreover, it calls for a great deal of careful preparation to make an effective argument on a complex legal question. You can readily understand this when you think of how difficult it sometimes is to explain to someone else even a relatively simple game.

Lawyers, then, not only try cases in the courts; they also brief and argue cases on appeal. Actually, this is a part of a large area of the lawyer's professional life described by the broad term "advocacy." What we are really talking about now is the lawyer's task of explaining a client's position to a tribunal of some sort having the power to render a decision on the subject. This tribunal may not be a court at all in the normal sense of the word. For instance, your client may be a merchant having a store on Main Street, outside the store he has a sign hanging out over the sidewalk. The City Council of your community may be considering a new ordinance prohibiting such signs. They believe that signs of this kind not only are dangerous to passers-by but also make the street ugly to look at. Your client, on the other hand, has interests of his own. In the first place he owns the property the sign hangs from, the sign is well constructed, well braced, and, moreover, it helps his business. His payroll is a large one, and many good citizens are dependent on it. Maybe, he says, the sign looks ugly to the City Council, but to him it's a beautiful sign. He contrasts its shining lights and brilliant colors with the fly-specked placard he had in the window of his first store. It will interest you to know that there are some very difficult legal problems in this rather simple little picture. For instance, to what degree may considerations of beauty, called by lawyers "aesthetic considerations," control the welfare of the business community? (This is one of the problems faced in the control of billboards along a public highway.)

Your problem, at this point, is not exactly a legal one, though ultimately it may become one. The merchant wants you to explain his position to the City Council and persuade them not to pass the sign-prohibiting ordinance. He would do it himself but he has had no training in public speaking, and this is so important to him that he wants professional help. That's you. And that's "advocacy," though it's a long way from trial work.

There are many other tribunals before which the lawyer appears on behalf of his client. For instance, our great national resources, belonging to all of us, are used by only a few (for instance, our air is used for the transmission of radio and television programs by a very few people), and these few, the Congress has said, must use them in such a way that the public convenience and necessity will be served, and not harmed, by the use permitted. Of course, the Congress doesn't have the time or the facilities to undertake the day-by- day regulation of the radio and television industry (or the railroads or the power-and-light utilities or the food-and-drug industries or, indeed, any of the other great areas of human endeavor in our country), so the actual administration of the rather general controlling laws passed by the Congress is given to what the lawyers call an "administrative tribunal," or a "commission." These commissions issue regulations governing the subject over which they have jurisdiction, and often the regulations are issued only after a public hearing at which its pros and cons are debated. Your client, for instance, may be the owner of a television station who objects violently to a proposed regulation that the power used in transmitting must be limited to a certain number of watts. He says if this is done his station will be unable properly to serve its normal area because of natural obstacles to television transmission peculiar to his area. He wants you to put his position before the commission and to prevent the enactment of the proposed regulation. Incidentally, if you are going to do this adequately you will have to become something of an electronics expert yourself, at least with respect to this question, for the commission will fire at you a lot of very technical questions about the operation of your station.

Or, it may happen that your client will have a problem respecting his daily station operation. He must first present it to the commission, and, again, that's where you as a lawyer come into the picture. You will assemble the information required by the commission to render an intelligent ruling, and then you will present it to them, either verbally or in writing. It is only after you have presented the matter in detail to the commission, and the commission has ruled upon it, that the law permits you to go to court if you feel you have not been fairly treated.

These and similar presentations on behalf of your client, as well as the actual trial of cases in court, all contribute to that branch of a lawyer's professional work known as "advocacy." It is a demanding kind of work. It requires a careful preparation of the facts and an equally careful presentation to the tribunal. Here, of all places, you will realize the need for the elimination of the irrelevant, of going directly to the heart of the controversy, of avoiding the beguiling bypaths. It takes no preparation whatever to talk on a topic for an hour. But if stating your case in fifteen minutes requires real work, stating it in ten requires genius!

These, then, are some of the things that are required of a lawyer. They range a broad field, as you can see, and require personal characteristics as varied. And that brings us to the question that has bothered high-school students and college students, and sometimes even law students, for as many years. It is this: Do I have the characteristics necessary for success in the practice of law? Would I make a good lawyer?

One young man from a small community sought advice. His father owned a store in what we call a county-seat town, and the boy had often gone over to the courthouse while court was in session and had listened to trials. His mental picture of a lawyer was that of a trial lawyer, a man who was speaking or arguing on his feet in public during most of his working day. His father feared that he could never be a lawyer. He said he hated public speaking and felt awkward in large groups.

The other boy was a corporation executive's son. His only experience with lawyers had been (secondhand, of course) with those who advised his father on the intricacies of the issuance and sale of corporate stocks, their registration with the national commission organized for this purpose, and upon the other many complex details of a corporation manufacturing and selling a product in many States of the Union. But the boy was greatly interested in dramatics and public speaking. He had won the intracity debating contest. His fear about the practice of law, as he expressed it, was that the painstaking survey and comparison of numerous State laws concerning the merchandising of either securities or products would "drive him crazy." What he wanted was the excitement and drama of the trial.

Each boy's picture, you see, was distorted. Each thought of the practice of law as that particular kind of practice he was familiar with. Actually, we have different kinds of lawyers. They do different things. The characteristics required for some are vastly different from those required for others. In a field so broad you may tailor your practice to your characteristics, if, of course, you have freedom of action as to where and how you will practice. Law, you see, is a banquet with many courses. You may skip the soup, if you want, and concentrate on the salad. Though your meal may not be so well-balanced as your neighbors', neither will you be upset by a food you can't digest.

Incidentally, the boy who couldn't "stand" public speaking was cured of this feeling as soon as it was really brought out in the open. He merely took a course in public speaking and found out it was fun "Young man," he said, "a trial lawyer is merely a lawyer who is experienced in trial work, and if experience can teach you how to ride a bicycle it can also teach you how to try a law suit," This wasn't exactly accurate, because a good trial lawyer must have a fund of real professional knowledge, such as the laws of evidence and the laws of legal procedure (these are the Marquis of Queensberry rules for trials), and he must know, as well, a great deal about human nature, but in part the judge was right. If we have the basic technical knowledge required, we shall become expert in applying it by doing it. As in many other things in life, it is not so much what we are born as how we are made; and we largely make ourselves.

In summary, then, and in the broadest possible terms, there are two sides to the lawyer's activities. In figurative terms, he walks through life on two legs. One is called counseling and the other advocacy. Each requires knowledge and each requires skill.