Monday, December 28, 2015

Let's Kill All The Lawyers

I get it why people don't like lawyers.  Sometimes, maybe most of the time, we do things which are despicable. Especially, those of us who try cases. We are officers of the court, sworn to uphold the truth. In fact, it is unethical to knowingly participate in the giving of untruthful testimony.  We have an ethics code that is strict. We must take classes on legal issues, and importantly on ethical matters, annually.  Yet, every thing is relative.

I did not participate in team sports in school. I was not a high school or college debater. I am a baseball fan, as is most of Kansas City, post-World Series.  I never experienced "taking one for the team."  When I was young, as the oldest sibling, I wanted to protect my brother and sister from harm. As a mother I wanted to protect my son and daughter from harm, and, even though they are now grown, I still have those maternal protective instincts.

When I represent a client, I am protective of him or her. I do not allow my clients to be treated with disrespect in a deposition. I try to empathize with my clients, and, to a certain extent, with all parties. I know, intellectually, that my cases are about my clients and not about me. I know that the facts matter, that I am not engaged in some sort of law school competition, based solely on my performance. But, when I am in trial, I have such difficulty relinquishing control, such difficulty viewing the trial as something other than a duel to the death (metaphorically speaking), such difficulty in dealing with this zero-sum game. The trial becomes about me. I believe the opposing counsel believes the trial is about him. To the lawyers, the trial is no longer about truth. It is not about justice. It is all about winning.

We lawyers, especially those of us who are trial lawyers, can easily get the better of an adverse witness.  I have been cross-examining witnesses for 32 years. I try to be polite, I don't want to alienate the jury, but it is rare that an opposing witness can best me. I have seen lawyers light into my clients, portraying these normally honorable people as liars and cheats. That's the way the game is played. We pander to juries, who see right through to our insincerity, and we suck up to them, for example, gratuitously thanking those who served in the military for there service, while we would never enlist.We are phony, fake, intellectually dishonest.

Winning at all costs becomes everything. We twist witnesses' words. We call them liars, even though, or maybe especially if, we speak more intelligently, after many years of schooling, than does the witness.  We call opposing counsel names, expressly or implicitly, even though prohibited by our ethical rules, if we feel it will give us an edge. We think we are gladiators. The truth matters less than prevailing.  We preen and cajole in front of our audience, the jury. Winning a trial is like winning the World Series.  Even though some of us are modest, most lawyers know what a win means - it's all about us - we were more skilled, more brilliant, more silver-tongued than the hapless lawyer on the other side. We count our wins as a boxer keeps track of his knock-outs, it's all about us and our exceptional talent. What we do to witnesses is not even an after-thought.

We measure our worth as lawyers by how financially successful we are. We buy fast cars, live in exclusive neighborhoods, drink fine single malt Scotch. We advertise on television because we make a lot of money that way. We are difficult to work for, demanding of our employees. We are difficult to be married to, honing cross-examination skills on hapless spouses. We hone our skills by concluding the only things important to people, our potential jurors, are what would be important to Reptiles. We pay large sums of money to go to these "Reptile" seminars. We need to find the "tricks" to help us beat our opponents. We are the gladiators of modern times.

As you might expect from reading this piece, I recently went to trial and lost. But, that does not put me above these lawyers I describe. I want to win trials as much as any lawyer. Recently, I calculated my win/loss record in employment trials and relished discovering I win 74% of the time. See, I don't exclude myself from this indictment. I wish that "winning wasn't everything," but in trial,  it is.  While most cases do not go to trial, I go to trial a fair amount. I do not know how to change. My clients want to win. I want to win.

I have thought, what would I rather do?  I like to write, but writing a book is hard. I considered becoming a mediator, get both sides to agree to settle cases which can foster fair results for both sides in litigation, but then I would have to seek the agreement of lawyers, many of whom have the traits I describe above. There is one job that calls to me - baby cuddler in a neo-natal unit of a hospital. But, I suspect that the pay is not good. Right now, I can't afford to be a baby cuddler. A lawyer is supposed to be an honorable profession. But, I cannot believe that winning was not everything to any trial lawyer of competence - Clarence Darrow, William Jennings Bryan, undoubtedly cared about the bottom line. Bryan died just days after losing the Scopes trial. If there is a heaven or a hell, I wonder where all of the dead trial lawyers reside. Sigh......


  1. I actually have a different opinion of lawyers. I've been in court four times & won all four times. All four lawyers represented me pro bono, because I was.

    1)Hit & Run: All of the adults lied, or were mistaken, & said I ran a red light, then fled the scene. The boy I hit told the truth, & said that the light was green, he was jay walking & that I stopped to see if he was alright. (Interestingly, when the boy took the stand, my lawyer asked that all of adults that had already testified be cleared from the room. Most people don't know that children are more accurate witnesses than adults. But, you probably know this.) After the boy's testimony the judge immediately ended the trial.

    2)Assault & Battery: The charges were immediately dropped when the judge heard that I wasn't the one who threw the first punch.

    3)Assault & Battery: The charges were immediately dropped when the judge heard that I wasn't the one who threw the first punch, even scolding the plaintiff, "You can't hit someone, & then have him arrested, when he beats you up."

    4)Hearing before Administrative Law Judge regarding my application for Social Security Disability: My lawyer said he was interested in the case, because I was attempting to establish a legal precedent with my interpretation of the law. WE WON! I think that it was only because of him, & his knowledge, & skill.

    The first three were local (West Virginia) & friends of the family. The last (this was in Nashville) was famous - he successfully represented Planned Parenthood before the United States Supreme Court.

    Today, one of my best friends is a local lawyer.

  2. "First thing we shall do, we shall kill all the lawyers" is actually Shakespeare's COMPLEMENT to lawyers. It is spoken by one of the conspirators plotting to overthrow the king and set up a tyranny -- so the first thing they must do is kill the guys who are the guardians of the rule of law.

    Phil Cardarella, Esq.