Notes

John Grisham, with a new book of short stories out, is talking about what it was like to practice law back when he actually did:

As a small-town lawyer, you don’t meet people who are living happy, productive lives with no problems. Everybody who walks in the door has got a problem. Most of the people who walk in the door don’t have a lot of money. They’re injured, they’re going through a divorce, they’re going through a bankruptcy. Something bad’s happened to them and they deal you the cards and you’ve got to help them as their lawyer.

Sounds like my practice. Seeing the same kinds of things over and over makes it difficult to avoid constant cynicism. We rarely see happy people who are in control of their lives. More often, we see desperate people who are struggling to take control. And sometimes they want control of more than just their own lives. Far too often, they want to use the court or law not as a shield or a solution, but as a weapon, to punish someone else.

Before I saw law practice firsthand, I was skeptical of Abraham Lincoln’s observation that “there will still be business enough” if you discourage litigation and persuade people to compromise. But now that I have some experience, I see that persuading people to compromise is even harder than persuading a court to rule in your favor. And many people appear to believe that an attorney that discourages litigation or persuades clients to compromise is not “fighting for them.”

Sometimes an attorney will see a losing battle where the client will see a winning one, or vice versa. Matching expectations can be extraordinarily difficult, especially where one person in the relationship—either the client or the attorney—is optimistic about the prospects of success, but the other is pessimistic. The flood waters rise even higher when one attorney pessimistic about success is pressed into service by an optimistic client and deployed against another attorney who is optimistic that the other side will lose. Sometimes I think litigation is just the result of poorly-matched relationships all around, from the parties on out.

There will be business enough. People are just too good at getting themselves embroiled in dysfunctional relationships while simultaneously feeling entitled to the benefits of functional relationships, and lawyers (and psychologists and other professional social engineers) are too good at coming up with reasons why everybody deserves “relief” or to be “made whole”—which is just lawyerspeak for “your problem is somebody else’s fault.”

But without the constant roiling of the legal waters by people who are not living happy, productive lives with no problems, our laws would never be refreshed to match the expectations of our times, which are usually articulated by people who control what a happy, productive life with no problems is supposed to look like. The whole thing is a crazy, dangerous dance, but it would be hard to imagine life without it—unless everybody was medicated and all aspects of our lives were administered by watchful and, we would hope, benign overlords. Lawyers, unfortunately, find themselves hurled, again and again, to the middle of the dance where they are yanked in every direction while trying to hold things together—and wondering if anybody really needs them anyway.

It’s easy to blame someone or something for the crazy, dangerous dance, so people do: government, politicians, irresponsibility, godlessness, poverty, lack of education, trial attorneys, activist judges. Whatever pops into your head, just blurt it out with enough righteous indignation and refuse to back down—you might get a talk radio show.

But we’re talking about how to regulate human society, which means, in our milieu, the “rule of law.” And since we apparently cannot abide not blaming anyone for our problems, and since complaining about the adverse effects of power differentials is enormously fashionable among people who claim to think about these problems, the question of whether human society can be regulated without the ebb and flow of satisfied and dissatisfied people in trying to regulate human society according to their factional sense of the “norm,” does not come up. Here in America, we just assume, first, that somebody is in charge of making our lives miserable, and second, that everybody else’s job is making sure that somebody else is put in charge as soon as possible.

We seem to like it that way, with a never-ending parade of “reform.” Do lawyers play both sides of the fight? Yes, we do. Would the fight keep going if we weren’t in it? Maybe not, for a time, until a catastrophic revolution reignites the perpetual controversy. But the underlying conflicts will never go away: people will always disagree and they will always call others to their assistance in fighting out their differences. Those others are the lawyers.