Recent surveys indicate that the profession of the law does not stand so high in the public esteem as it did a quarter century ago. Why is this? Here we have a profession dedicated to service and demanding of its practitioners the highest standards of ethics and culture and academic training. Yet, in some parts of the country, its prestige is on the ebb rather than on the flow. The reasons for the decline, where suffered, are difficult to isolate. The decline arises from two causes. The first is a lack of public understanding of what we do, and the second is the failure of some of our members to adhere to the traditions of our profession. Each cause is directly traceable to us. In some ways we are handicapped. We do not advertise our virtues. We have no slick- paper magazines devoted to our glorification. We speak, often, in a strange tongue, of writs of mandamus and challenges to the array. We will stand in a public courtroom shoulder to shoulder with a suspected Communist when other good citizens will cross the street rather than look in his face. We are a clannish, highly individualistic, unregimented group.
Measure of understanding
With all of this, in and of itself, there is no complaint. A man who lives with his conscience and the concept of justice as much as a lawyer does has a demanding pair of companions. Let us not substitute for them the profit motive, lush though its rewards may be. But let us bring to fellow citizens some measure of understanding of what the lawyer faces. With such understanding the problem of our "public relations" will no longer be acute. The most conclusive demonstration of this proposition, to my mind, is the fact that whenever a lawyer has finished for his client a complex operation, performed with skill and care, having kept his client fully informed of the various measures employed as they were undertaken, the layman is usually loud in his praises of "his" lawyer, not of the profession as a whole, mind you. The rest may remain, in his estimate, a ruthless and corner-cutting group, but "his" lawyer-well, that's different. Why? Because of one thing and one alone: understanding. This should mark out for us a course of conduct in the practice of our profession.
The first thing to realize is that by the very nature of our profession its practitioners are bound to have violent critics. Just as every case has a complainant, the man who starts it, and a defendant, who is brought into court to defend it, so in the end every case has a winner and a loser. The loser is often highly vocal in his criticism of the whole business. In short, he screams like a scalded cat. He denounces the law itself, with all its archaic formalities, the unsympathetic jury, sometimes the judge, but always, without fail, the opposing lawyer, whom he describes in various terms, the most charitable of which are often crook and shyster. Sometimes these explosions are short-lived, followed by apology and regret, but sometimes the loser makes a career out of them, exhibiting his scars for years to all who will look and listen. In any event, short-lived or long, the criticisms exist, have a certain force and effect, and they must be reckoned with. As a matter of fact, there may be a measure of justification for some of the charges made, and when there is we should do something about them. Granted, the loser is a poor loser, and a blabbermouth to boot; but remember, he's been kicked (or thinks he has), and the old saying goes that even a dog is entitled to know why he is kicked.
So, the practitioner of the profession has a built-in detractor, the loser. It's almost as though the practice of medicine were so set up that the disease itself had a champion of its own, another skilled doctor who, at every stage of the process of treatment and cure, challenged what the patient's doctor was doing and criticized him for doing it. We might get more careful diagnoses in that event, and more cautious treatment, but we would also see a less-revered position in the public esteem for the physician.
Explanation to client
The recognition of this fact of professional life, however, imposes a very real duty upon the lawyer, the duty of explanation. So the lawyer, early in the case, should sit down with his client and explain much of what is to happen. He should explain why the case will not be tried tomorrow. The reason is that our case has to take its place in line, and, moreover, it takes time to prepare a case properly. He should explain that his client may be called upon to answer some pretty searching questions in advance. Why? Not to gratify his opponent's idle and evil curiosity, but because it will shorten the trial and will prevent surprises being sprung on either side in the middle of the case. Other procedures, also, should be made clear. The point is that the lawyer must be careful to let the client know what is being done and why. Here is an incident of a businessman who was literally frothing with rage. A deputy sheriff had come to his place of business and taken away two of his ledgers under court order. He called his lawyer on the telephone at once, and all he got out of the conversation was something to the effect that "they slapped a writ on me." Naturally there were resentment and harsh criticism of the law and lawyers in general. But what had happened was merely one step in a perfectly routine pretrial procedure (called "discovery") designed to facilitate the conduct of the trial.
The client should have known it was coming, and when, and why.
The point made is of widespread application and of the utmost importance. Why, for instance, can't a land deal be "closed" (meaning money paid and title transferred) immediately? When the lawyer merely tells his client to come back in two weeks for the closing, the client mutters to himself that all he's heard about procrastinating lawyers is certainly true.
Actually, however, the lawyer could himself close it on the spot, so far as his preparation of the deed is concerned. But our land law is such that before it is safe to pay the money the history of past transactions in the property must be examined.
For instance, a previous owner may have mortgaged the property and never paid off the mortgage. (This means that the new owner will either have to pay it off himself or lose the land.) This examination takes time. (It is usually called "bringing the abstract [of title] down to date,") It is not a measure of delay but a measure of protection. These things must be made clear to a client. We cannot simply write a prescription in Latin and send him on his way.
The matter of the fee of a lawyer, also, is a delicate matter, and subject to much misunderstanding. There are many legal steps in the preparation of a lawsuit, and we have just discussed how necessary it is to keep the client informed as to what is going on. We should keep him, as well, currently billed for what is going on. It is perfectly amazing how the hours spent on a long-drawn-out case mount up. You go on, week after week, doing all the things necessary to prepare the case for trial. At the time, we shall assume, the client knows all about them. (Make it your business to see that he does, even if what you are doing is highly technical.) But at the completion of the case (particularly if you lose it) much of this long drudgery of preparation will have been forgotten by him. The size of the total bill may start him spouting like a volcano, although the same sum, paid out upon monthly statements, he would have regarded as eminently reasonable for the work he knows you have done. We are, in truth, to blame for much of the criticism respecting the matter of professional fees.
New clients and fees
One more matter respecting fees. Many clients are too bashful to ask about them, or they think it will betray an unworthy anxiety. Make it a practice to tell a new client, early in your dealing with him, approximately how much this service will cost him. You will explain to him that this is merely an approximation. If he presses for a more exact figure (and some do, remembering all the talk they have heard about astronomical charges), it is like asking a doctor how much a certain illness will cost. No one knows. It depends upon how sick the patient is going to be. However, you should assure him that as the work goes on you will sit down with him from time to time in order to review the charges incurred, in order to be sure that his maximum allowable figure is not to be exceeded. On a tight budget you will probably end up by doing much of the latter stages of the work for nothing, or almost so. If you do, it will be because by this time you are so convinced of the justness of your client's cause that you will not permit it to fall for lack of funds. You will ultimately be paid, never fear, in one coin or another.
It is particularly important to discuss fees with respect to opinions you are asked to prepare on difficult phases of the law.
What's more to the point is that an unexpectedly large fee subjects the entire profession of the law to a charge of money grubbing. Remember, we aren't running a business. We are rendering a service.
So far as our reputation suffers from charges of chicanery and trickery in the winning of cases, the only cure (if there is any--the charge is so easy to make) is, again, better understanding. The losing counsel has a peculiar responsibility here.
He must give the devil (opposing counsel) his due. Thus, it is not trickery, though it sounds like it, to object to the introduction of inadmissible evidence. For instance, many States have what are called “Dead Man's Statutes." They are in tended to prevent the looting of a man's estate by perjured testimony after he has passed away. The statute would not permit one, for example, to testify that John Doe (now deceased) privately promised him that if he (the witness) took care of John's garden for three years, John would give him the truck in the barn. Maybe John did so promise and maybe he didn't. But if such evidence is admissible, how could John's widow ever prove that he did not say it?
If a lawyer's case depends upon the acceptance of some highly questionable evidence, the point should be made clear to the client both before the trial and after. The opposing lawyer has a duty to his own client not to permit the use of such evidence. This is not legal trickery, and the law on the issue should be made perfectly clear to the layman involved. This is not to say that there are no lawyers who are tricksters. Every profession has its rotten apples. But let's not take blame for rottenness when none's there. And speaking, as we are, of trials, watch your conduct at such times with great care. Nothing a lawyer does arouse such bitter resentment, and so much criticism of the profession, as the bullying of witnesses on the witness stand. If you have brains you don't have to depend on your muscles. Furthermore, it is an uneven contest. The witness is in unusual surroundings, under oath, and confronted by many strangers. He should be treated with consideration and respect. If he's lying he may be exposed by a careful cross-examination. The use of bullying tactics only makes him cling the more desperately to his story and arouse certain sympathy for him in the minds of the jury. More importantly, however, it creates a feeling of disgust and resentment with respect to the law itself. We should be above the use of the rack.
We could examine for some time this problem of the professional reputation of the bar. Much of our difficulty arises from our living within the shells of our own private practices. Such things as community and bar-association leadership, active participation in government (this does not mean office holding) at high and low levels, and the furnishing of legal advice at modest charge to low-income groups, as well as other related problems, all require the lawyer's emergence from narrow areas of private interest into the broad public domain. The true practice of the law is much like a coin. It has two sides, one private and the other public. They are welded to each other.
It is only when the private side is emphasized at the expense of the public duty that we get into these critical problems concerning the reputation of the profession, its "public relations" problem, if you will.
The traditions of the profession teach us that we do not practice for gain, that none is too weak for our aid and none too strong for our attack. We are taught to look for the substance behind the form, to accord the beggar his due no less than the banker, and that truth and honor must walk with us down whatever road we travel. If we remember these things our "public relations" will be no problem. If we do not remember them there is no campaign of self-glorification that can help us. The people are not stupid.
