It's always amusing to hear one attorney express surprise at the way another attorney acts in a personal lawsuit. You might have heard such phrases as, "You're a lawyer, but you're acting just like a typical client." Or, as a couple of lawyers described it in the ABA Journal, "Sending out legal bills is a difficult process. Reviewing and paying them, is significantly worse. It is infinitely, infinitely more difficult to be a client than an attorney."
Unique among the industries in our market-oriented economy, the law acts as though the goal is to turn off, disappoint, and get rid of the customer. There are no guarantees or warranties. There's no "truth in justice" that requires your attorney or the court to give you full information on what is happening to you.
And that's dumb. Treating consumers well is what makes our economy grow and leads to improvement of our products. What's good for America is good for business. Surely it makes no sense to let the legal system use sales tactics that would be considered tacky, if not downright illegal, in other industries. But what is it, if not a bait-and-switch, when attorneys promise, or let you believe, all kinds of good things about what you can get from your lawsuit, and then, after you've paid a lot of fees, gradually lead you to see how tough it'll be to really win anything. Not to mention the high-pressure sales tactics in which they tell you that the judge is unavailable and that you'll have to wait forever for a trial date; but then, the moment you cave in and decide to settle your case, the super-busy judge is miraculously available, and they get you to agree to everything as quickly as possible.
When consumers lack confidence in the legal system, they'll tend not to use it if they don't have to. That means two things: Lawyers will not do as much business as they could, and consumers will not get from the legal system what they need.
It may be irritating to meet people who are passive. You want them to wake up and become practical. But, ultimately, that's not for you or me to decide. People have a right to live the way they want. Before we give a jerk the power to invade a meek person's life, there ought to be a good reason for it.
You can't really fault meek people for avoiding the legal system. It disrupts their peace and contentment for the flimsiest reasons, but restores their domestic bliss, if ever, only after a bitter struggle. Litigation, for these people, is not just a matter of paperwork. It exposes them to a whole world of meanness from which they've been marvelously free. Throwing them into this pit shouldn't be done lightly.
Lawyers and judges might not understand this point. A couple of them come into play here, such as: If in doubt, you should request more information, not less, about a person's business affairs or private life; ordinary people are wrong in not being political, cynical, and paranoid; and it's wrong to avoid fighting in defense of your rights.
In the end, the legal system demands realism of everyone. Those people create the domestic situations that enable the rest of us to go out there and work hard. The longer our system of law and legal education is permitted to go on making us mean, the fewer there will be who'll have the strength, or even remember how, to be trusting and relaxed toward others.
They say the price of liberty is eternal vigilance. But eternal vigilance by everyone leaves no time for liberty. It is essential for our kind of society that a large number of us have the right to live innocently, and that we limit the freedom of lawyers to attack that innocence without first evaluating the merits and consequences of their attacks.
It is not difficult to wrap up the situation in the law as we now confront it, and to present to you an image of what you're doing, in the big picture, if you become a lawyer and do nothing to improve the legal system.
There's no sign that legal experts are keeping up with recent changes, such as the transformation of the legal profession into a business. Only the wildest optimist would see any reason to believe that, beyond keeping up with the changes, the experts are making sure that the legal system of the future will be better than the one we have now.
Our legal system takes great precautions to make sure that the truth comes out in trial, and then forces nearly everyone to avoid a trial by settling out of court. On the criminal side, it announces a goal, like reformation, and then fails, and then announces another goal, like deterrence, and fails at that, and then announces another goal... You've got a system in which they encourage dishonesty because it will supposedly bring you the truth. You spend a tremendous amount to obtain justice in even the simplest cases.
Let's face it, folks. Many of us believe that "Power tends to corrupt and absolute power corrupts absolutely." By being too nosy and ambitious, our legal system has greedily claimed more power than it can manage. Consider:
- Absence of any form of political authority.
- Political disorder and confusion.
- Absence of any cohering principle, as a common standard or purpose.
Those who designed the legal system like the fact that, in the ways that matter to them, it is so orderly and logical. But their priorities are not ours. They may make it perfect according to their needs, but by going too far in the directions that matter to them, they don't go far enough in the directions that matter to the rest of us. All too frequently, they leave us worse off than we were to begin with.
For 200 years, our Declaration of Independence and our Constitution have been the envy of the world. Unfortunately, the ways in which our legal system has developed the concepts contained in those documents have not always worked out in the direction of liberty and justice for all. When the Iron Curtain fell, Eastern Europeans sang the praises of those old documents, but, unlike their eagerness for Hollywood movies and American technology, the masses noticeably did not cry and scream until they were given, say, a Czechoslovak equivalent of the American jurisprudential bureaucracy.
It is important that we straighten out these matters, even though it might be possible for the legal system to continue to muddle through by ignoring them. American business has power around the globe. American law firms are taking prominent positions in other countries. And American law schools are training record numbers of foreign students in American views of law.
All over the world, people are looking to us for guidance in concepts of liberty and democracy. We should make sure we're proud of what we're handing out to them, so that we can live up to their hopes, as we did in the old days.
