SEPTEMBER 21, 2021 – I’m beginning to harbor second thoughts about my life-long profession. “Beginning”?! Well, not exactly, but as we’ve seen on stark display over the recent past, denialism and rationalization run rampant in our species.
What’s led to second thoughts? “Repetitive introspection.” After hitting one’s skull against the wall 10,000 times, one discovers . . . introspection, which compels closer examination of the wall (bricks and concrete) and its resistance to one’s skull. In my case, “introspection” involved closer inspection of America beyond jurisprudence. That process revealed three elements of broader society reflected in “the law.”
First is money. What defines our culture better than money? Why, accordingly, shouldn’t “Equal Justice Before the Law” involve . . . money? Legal issues require a lawyer’s time, and in complex matters, often the time of a whole bevy of lawyers. Time isn’t cheap, and the legal profession is uniquely placed to double-time: once one party to a dispute or transaction retains a lawyer, the opposing party is all but guaranteed to hire a lawyer, and presto!—one billing clock becomes two.
For lack of money, the poor are grossly underrepresented, in criminal cases and civil matters alike. Conversely, the wealthiest members of society (most notably business organizations), are over-represented. Face opposition in the form of government regulation or opposing private parties? Retain hired guns to find every loophole, create every opening, appeal every decision, threaten every countermove.
Speaking of guns—and the second attribute of society reflected in American jurisprudence— under the “Code of Ethics” governing the professional behavior, lawyers are duty-bound to exercise “zealous advocacy.” In practice this means the lawyer is “weaponized”—like the rest of society, which operates under the same cultural mentality. (Example: I once represented a real estate developer (against another real estate developer) in a week-long jury trial. At my initial meeting my guy asked me, “How many bar fights have you been in?” I thought he was joking or asking figuratively, as in “How many trials have you handled?” but he’d meant exactly what he’d said: How many fights in a Western-style saloon? That exchange occurred nearly a decade before the Age of You-Know-Who. (Fortunately for my own mental health, I won at trial.))
The third element of “law” that mirrors America: a diffusion of government and political organization. We have 50 states with 50 sets of statutory, administrative, and common law beneath the federal construct. Within each state, multiple subdivisions and juridical systems exist. Enter obscurantism in legal writing, which observes no boundaries, and you have a feeding frenzy for “word warriors.” Don’t like a predicted outcome based on the state of the law? Make up an exception—you have plenty of material from which to show how your case, your contract, your money should receive different treatment from how your opposition sees the world. Or move to the procedural front and smother your opposition with motion practice.
Enough for now. Time to battle obscurantism . . . with “zealous advocacy” so I can make some money.
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© 2021 by Eric Nilsson
