by Scott Turow
This dichotomy between doing good and doing well, which so deeply troubles the legal profession, should be familiar to those who have read One L, for its roots reach into legal education. As I noted, one of the most painful aspects of law school is what students often experience as the sense that they are being taken away from themselves. Deeply developed values and beliefs are challenged and generally exposed. Students learn that for every argument there is a counter. The plasticity of the law is taught. Moreover, most of what takes place during the supercharged and often coercive atmosphere of the first year goes to emphasize what I would call a culture of professional competence. What matters, professors tell you time and again, is not that you come up with the right answer on exams but that you reason powerfully and recognize contervailing arguments in areas where there are no accepted solutions. Rationality is a human attribute worthy of being prized. But lawyers trained in law schools generally come away with the feeling that adherence to a larger world of values is somehow discouraged. For the idealist is substituted a technocrat. The do-gooder is now someone who aspires only to do well.
It is this absence, I think, that accounts for much of the unhappiness I described before. Feeling cut off from a world of transcendent values, lawyers often despise themselves, because, as they see it, they do no good, while a few others, too absolute in their hunger to do well, are willing to believe, too easily, that there are no limits to the extent to which they should go in a client’s behalf, and engage in lawless behavior.
Where does it lead? Whither out of the mess? I suppose at this point I can only be plain.
Ten years down the road I have learned this much: Our life as lawyers can be redeemed ultimately only by the process of which we are a part. The synthesis of the do-well, do-good dialectic is some margin of faith in the legal process. Whether that means the ardent advocacy of reform in the process itself, or faith in the laws that are applied, or dedication to ethical representation of clients’ interests, lawyers take the greatest satisfaction from their calling when they believe at some level that the system of which they are a part aims at achieving just and rational results, no matter how far or how often it strays from those objectives. As corny or even unlikely as it sounds, most lawyers, at root, are involved in doing justice and for that reason should feel allegiance to the lawyering process.
In a way this not an argument at all, but the passionate advice of experience. My first years as a prosecutor were profoundly frustrating as I watched the manifold ways in which the truth becomes distorted in a criminal courtroom. The defendants were so guilty, what they had done was so wrong, and it was so hard to show that. It was not that there was a rash of acquittals—indeed, the government won most of the time—but the path was always tortuous. The defendants and their accomplices routinely bore false witness; the rules of evidence were sometimes foolishly restrictive; judges seemed to side against the government at trial out of an expedient desire to appease the defense, which alone has the right to appeal; and the jungle ethics of the criminal courtroom seemed to reward the most underhanded maneuvers of defense lawyers. And yet somewhere, twenty to thirty trials along, like Saul on the road, I found myself converted. I began to realize that we were all—the judge, the defense lawyer, I myself—engaged in a mutual enterprise, that there was a moral vision at work here, which provided that we could not safely deprive any human being of his or her liberty without first knowing that the provable facts could not be contorted into a shape reasonably consistent with innocence. I even recognized that, whatever the unearned suffering of the crime victim, the defendant now was enduring a torture of shame and anxiety of his own, and that compassion was a worthy, even healing value in a process that usually inflicted some form of tangible punishment. And by then the unthinkable had occurred: I could see myself as a defense lawyer.
That change in perspective did not make me a cheerleader for the criminal-justice system. But as prosecutor, and now defender, I have had the benefit in each role of a deeply felt sense of what I am about. There is a genuine nobility in dedicating yourself to the ends and interests of another, in becoming that person’s unhesitating champion. Law practice is gratifying at its highest levels not only because of the status, intellectual challenge, or sometimes exorbitant financial rewards, but because there is something profoundly pleasing to all of us about being able to provide direct aid to someone who is eager for our assistance. They need me, they need me! thunders in the mind of most lawyers who like what they do.
For a lawyer, the essential professional task is to answer that need, to subsume his or her own interests and to act as the spokesperson for another. Worthy as that enterprise may be, it is not unique—real estate brokers and literary agents, among many others, do the same thing. But lawyers also labor with a concomitant dedication to the system of justice. The fundamental tension of the profession is the struggle between bold advocacy of the client’s interests and the need to establish and hold to limits that prevent advocacy from leading to irrational and inequitable results; and thus the lawyer’s job in practice is to be on one hand the impassioned representative of his client to the world, and on the other the wise representative to his client of the legal system, and the society, explaining and upholding the demands and restrictions which that system places on them both. Every lawyer who enjoys the practice learns to recognize and embrace these conflicting imperatives, even as she or he labors daily to resolve them. But that learning right now is hit-or-miss. There is no cultural center to the practice of law, no sense of a shared background that informs us all with a fidelity to and comprehension of the lawyering process.
Certainly, law school right now does little to help. Students are introduced of necessity to the culture of professional competence, without being taught much about the commitments of their profession. And the reason, quite simply, is that this is not law school’s aim. To put it plainly, law school is not lawyer school. With the exception of clinical programs which teach practice skills, and which generally stand as isolated segments of the law-school curriculum, there is still little effort to teach students, while they are in law school, what it means to practice law.
It should not have taken me roughly fifteen years to figure all this out. When I applied to law school, I was a lecturer in the English Department at Stanford, and, as a courtesy, the Director of Admissions at Stanford Law School agreed to speak to me. He explained why the law school sought so single-mindedly those law students with a combination of stratospheric scores on the Law School Admissions Tests and eye-popping grades. They were not interested in interviews; they did not care very much whether Joanie or Johnny Applicant had been an Eagle Scout, a Ph. D., or president of a Fortune 500 company.
“We want the one hundred fifty best legal scholars we can find. When we are done training them, we want a hundred fifty more.”
Law school is about training legal scholars. Despite the persistence of the time-worn phrase, law school does not teach students to think like lawyers. It teaches them to think like law professors. Judges’ decisions, in the law-school classroom, are far more important than what the lawyers did or could have done. Important cases are still studied by reading the judicial opinion, rather than the lawyers’ briefs or the oral arguments they gave. There is little attempt to look at the law, as practice will see it, through the remedies it affords. Practicing attorneys rarely think first about the grand sweep of the law and its rational development. They think about the needs of their clients and how the law can be applied, shaped, or reformed to accomplish their clients’ goals.
But most law professors don’t practice; some never have practiced and don’t ever want to. Their focus is on scholarship: cutting-edge changes in the law, law-review articles, complex analyses of vexed legal problems. And law school is a world made in their image. Thus, law-review membership for students is a prized achievement. And joining a law-school faculty is a valued ambition. Those who lack those inclinations or the ability to satisfy them ar
e a kind of legal chaff which the faculty is prepared to consign to the plowfield of practice. Many decades after we tell ourselves that we have abandoned apprenticeship as a bar requirement, most young lawyers are still trained in fundamental legal skills—brief writing, research, courtroom technique, document drafting, negotiation, client counseling, and the paramount task of gathering the facts—on the job.
This is not entirely a bad thing. The best teachers of legal skills are those who use them, and it would have been pointless for my Harvard Law School professors to attempt to instruct me about the execution of tasks they barely know how to perform. But to the enormous extent that legal academics use law school as a forum to reify their own values and to disparage, silently or not, legal practice, they do a deep disservice to their students and the legal profession. Simply put, this vacancy leaves lawyers exposed in the worstpossible way, for it does not show students the other side of the equation. While they learn about the capacity of all arguments to be undermined, they are taught nothing about the ends to which that skill is meant to be applied. Little about the profession is held up to them for scrutiny-or admiration. The result is that the powerful minds of the law faculties bypass the opportunity to contribute more directly to the formulation of the ideals of the profession, and students depart having undertaken little refinded reflection on the complex values which guide and inspire legal practice.
The usual faculty response to observations like the ones ventured here is a version of I-have-better-things-to-do. The words “practice” and “practice skills” have long been taken by the law faculties as implying a roving anti-intellectualism that seeks to soak anything theoretical from legal education and turn law school into a high-powered trade school. I am not recommending a Red Guard revolution in which every law-school theorist would become a legal file clerk. I believe that clinical teaching should be more a part of the law-school curriculum, because many of the issues of practice can best be understood in context. But I am not arguing that law school be less abstract or theoretical. I remain persuaded that it is valuable for lawyers to be exposed to thought about the law that explores the historical development of the law, its policy rationales, and even its reflection of the most fundamental assumptions of our culture. Perhaps, as some law professors argue, there are practical benefits to this kind of education. It may well be that, as they contend, a sense of the larger intellectual construct of the law will aid students in shaping arguments when they become practitioners. Whether that is so or not, this sort of exploration is important because, more simply, it is good for future lawyers’ souls: it helps feed an understanding of what they are about as persons involved with the law.
Yet that sense of wide-ranging intellectual inquiry has to be applied not only to the law but also to the profession, which deserves to be much more at the center of the law-school curriculum. Where are the courses on the history of the law or its sociology, now and in the past? Doesn’t our jurisprudence have to concentrate much more on the question of how the good and the true can be pursued in an adversary system? Shouldn’t law professors be making an effort to scrutinize the structure of effective—and fair—argumentation, in the same fashion that literature professors have long analyzed poetry and prose? Few law schools, if any, teach courses that would be a law-side equivalent of public-health courses in medicine. There is no large-scale study of our delivery of legal services, or discussions of alternatives. And I find it particularly frustrating that at a time when certain American law professors in the Critical Legal Studies movement claim to be disregarding the sterile inquiries of other legal scholars, most adhere slavishly to the dominant tradition of ignoring the profession as a field of study. Many of these scholars treat the law as a cultural artifact reflecting profound, if hidden, cultural resonances. Yet they make little effort to apply their lessons to what is happening to the practice today. What, for example, has been the implication for the quality of reasoning in American law, as manifest in both brief writing and judicial opinions, in the era of the word processor and the copying machine when the cost of words is so dramatically diminished? What are the implications for the practice when the Federal Reporter, which reports the decisions of the federal appellate courts, now grows at two to three times the rate it did a decade ago? What happens to a profession in which the law accumulates so quickly that it cannot be fully known at any moment by anyone, even specialists or scholars?
Most important of the fields of inquiry that demand greater attention in the present law-school curriculum is the one usually labeled “Professional Responsibility,” which assays the professional balance between the lawyer’s duties to the law and to the client. In the heat of Watergate, in February 1973, the American Bar Association suddenly noticed that lawyers, as a group, had very little education in the rules of professional conduct, and therefore the ABA recommended that American law schools provide “instruction in the duties and responsibilities of the legal profession.” The result was the various two-or three-hour courses in Professional Responsibility now standard at every law school. Some states, like California, which a moiety of the Watergate thieves called home, added a Professional Responsibility component to their state bar exams. But the fact that law schools had long before established their largely invariable curricula without seeing that students learn the basic ethical rules of the profession emphasizes the fundamental problem.
An education which’ places the profession at its center will inevitably do far better in teaching those concepts. Attention to the daily life of the attorney-at-law will provide some meaningful context for ethical education, and it will also make evident its importance. These are in many ways the most profound and vexing questions in the practicing attorney’s life and they deserve scrutiny, not as part of some afterthought required course taken as students are dragging themselves out the door near the end of their careers, but as part of the first-year curriculum. Which rules really ought to bear more immediate scrutiny for law students—the law of personal jurisdiction, which I studied in my first week in Civil Procedure, or the ethical imperatives for a lawyer who is confronted with a client who wishes to save his business, his liberty, his life, by lying under oath? How do you explain the business of a profession in which a lawyer is required to be an unhesitating advocate, the keeper of his client’s deepest secrets, and also someone who must call to the attention of a court controlling authorities that damn his client’s position?
As the example suggests, what gets called ethics is not merely a set of guidelines; it is really a series of definitions of what a lawyer is and is not. The profession’s own vision of itself is embodied in these rules. Moreover, a more rigorous scrutiny will disclose what is seldom admitted in law school: that these rules are no different from many others, sometimes ill-advised, ususally subtle and indefinite at the margins, and occasionally in conflict with one another. Without some reference to a lawyer’s real-world function, the difficulty of drawing these lines and adhering to them is not likely to be appreciated. The fact is that a constant working-through of ethical questions—delving in the shadows, weighing duties, searching for balances—should be and is a commonplace of practice for most attorneys, as much a part of lawyering as going to court. If students come to recognize that and to internalize that sense of attention and discrimination, it is inevitable that the chances of things going awry later will lessen. There are many individuals to blame for the circumstances that lead a lawyer to bribe a judge, but we begin and end with that lawyer—and that judge. And yet, knowing this to be the last act in the drama, would we rather that the players had spent three years practicing their quick draw with their law professors, or more time immersed in lessons about the complex responsibilities of practice?
I offer this partial inventory of reforms to emphasize that, by calling for greater pedagogical interest in the profession, I am not advocating that legal education become a kind of advanced school of shoe repair. Even so, I recognize that there are reasonable objections to wh
at I propose. (I take as unreasonable any denial that it is law school’s job to prepare students to practice, since this would be so far from what is claimed by the law schools or desired by their students as to be silly.) Some law faculty members who have heard me rattle on claim that law schools have already advanced far in the directions I urge. At many schools, some upper-year courses are taught by the problem method, in which case studies replace cases and students are asked to imagine a practitioner’s response. In other places, clinical education has expanded beyond the teaching of trial skills and now includes hands-on courses in topics such as negotiation, or estate or income tax planning. All of this is true. But these innovations, while commendable, are really jerry-built additions to the basic curriculum; they add a little space but they do not alter the central construction or the environment in which most law students spend their time.
Other critics would say that, by emphasizing the lawyering process, I ignore the extent to which process sometimes masks the substantive injustice of many laws, or even insulates such laws from attack. We appoint counsel for indigent criminal defendants, and tell ourselves we have been fair, but we do not inquire about the justness of a legal scheme with such persistent and disproportionate impact upon the poor. Clearly, to the extent that I want the law schools to embrace the underlying good faith of the legal system, I assume, as we say in court, a fact not in evidence, and one which is entitled to debate. On the other hand, no one is more likely to point out the unfairness of the present regime of rules, or to attempt to expand the permissible horizons for attack, than someone who understands his or her obligation to be a spirited advocate for persons disadvantaged by those rules.