Tim Williams © News

By Andrew Cohen, Special to the News
November 30, 2002

You know the legal profession is in trouble if I'm about the only one around who's defending it. I'm a recovering lawyer - someone who practiced law for a while and then chose a slightly different career. I have no illusions about how creepy some lawyers are or about how awful the law sometimes seems. I wouldn't necessarily want my child to become a lawyer when he is older and I certainly can understand in some fashion why many lay people think that lawyers are only slightly above terrorists on the evolutionary scale.

All that said, the latest wave of contempt and reproach for lawyers and the legal world is not only exaggerated, it's disingenuous.

And its effect has been made far worse than it ought to be by the deafening silence from the bar itself. If lawyers are unwilling or unable to stand up for themselves, then who else will? And if no one stands up for this profession, why in the world would anyone not a part of it believe anything other than what its harshest critics allege?

Take the campaign recently completed for the U.S. Senate seat in Colorado. Incumbent Sen. Wayne Allard, a Republican, built virtually his entire campaign on labeling Democratic challenger Tom Strickland as a "lawyer-lobbyist." The phrase was repeated so often and with such a sneer that Rocky Mountain News columnist Mike Littwin was moved to write that the Allard campaign was making it "sound exactly like murderer-rapist." Allard's people might be cynical but they weren't stupid. The ad campaign was designed to feed on the distrust and resentment many people feel for lawyers and lobbyists.

Never mind that 20 of Allard's Republican colleagues in the Senate are lawyers themselves or that Allard himself often is at the front of the line getting campaign contributions. The charges were effective because they played into a perception that lawyers cannot be friends of the common man and that lobbyists - protected mostly, of course, by Republicans like Allard - are somehow illegal or at least immoral. But the perception doesn't match reality - something Allard, his campaign manager Dick Wadhams, Strickland and lawyers and lobbyists know. So what did local bar associations say about this sleazy campaign of innuendo against their profession?

Absolutely nothing. Apparently, some legal honchos thought about issuing a statement in defense of their members but decided against it for fear of appearing partisan. Of course, the lawyers' group could have defended itself in a nonpartisan way, like this: "While we neither support nor oppose the candidacy of Sen. Wayne Allard, we believe that his campaign's suggestion that lawyers are inherently unworthy of public office is false and contrary to a record that begins with attorneys John Adams, Thomas Jefferson, James Madison and Abraham Lincoln and continues today with Republican and Democrat lawyer-politicians alike." Such a statement might not have stemmed the tide of anti-attorney mojo coming from Allard, but at least it would have gotten the bar on the board.

Then there is Catherine Crier, the lawyer-turned-judge-turned-television commentator-turned-social critic, whose latest book, The Case Against Lawyers, is all the rage on talk shows and in book stores. The book is inaptly named because Crier's complaint, it turns out, is less against lawyers than against the legal, political, financial and cultural system that includes them. But, still, the book's title and tone are sure to put fuel to a fire that already is burning fairly bright across the country. In Crier's world, lawyers are greasing the skids for many of society's ills - from a lamentable trend away from individualized responsibility to an even more sinister abduction of democratic ideals.

Problem is, lawyers don't deserve blame for everything that's wrong with the legal system in particular and society in general.

Crier acknowledges this important concession in an oblique way in her book but it otherwise reads - and is certainly titled - in a way that suggests that her editors and publishers figured the screed would sell more if lawyers were highlighted as the real bad guys. But Crier surely knows that for every billion-dollar jury verdict there are hundreds, maybe thousands of defense verdicts. And she knows that no lawyer can win a silly case without a client agreeing to bring it, a judge permitting it to go to trial, and a jury agreeing with the plaintiff's rationale. Reading parts of Crier's book, you would think that lawyers act alone within the legal system.

Crier lambastes lawyers for forcing companies to spend tons more on insurance than they otherwise would. This is probably true. But can you remember a time in the history of the world when a corporation large or small voluntarily spent more to make its product or workplace safer out of the goodness of its shareholding heart? And no one can make a serious argument anymore - Crier certainly fails - that the criminal justice system is softer on suspected criminals than it ought to be. I'm not arguing that the legal system is perfect or that the legal profession doesn't have its share of problems. I'm just arguing that these problems interconnect with larger societal problems that are not necessarily caused or enhanced by lawyers.

And lawyers aren't a completely negative force in the world, either. They have created wonderful conditions in this country in the past half-century alone. Without lawyers our schools and public places would still be segregated. Without lawyers our free press would be far less free. Without lawyers Big Tobacco never would have had to admit that its product is addictive and causes cancer. Without lawyers workplaces and products would be far more dangerous than they are today.

If you are looking for a new book that similarly blows Crier's simplistic spin out of the water, check out Thomas F. Burke's Lawyers, Lawsuits and Legal Rights, which argues, according to its New York Times' review, that "America's famous litigiousness isn't rooted in plain and simple greed but is rather the logical response to America's distinctive distribution of power and to a historical distrust of big government." If, after this, you still want to blame lawyers for all manner of societal ills then go ahead. But if you do and want to be honest about it, you'll also have to blame cowardly politicians and greedy corporate executives and inept doctors and overzealous cops and lecherous bosses and bad engineers and sloppy manufacturers. And before you know it you'll be blaming so many different types of people that you'll begin to blame yourself. Lawyers are only one symptom; they aren't the whole problem. And that's an argument coming from someone who liked practicing law so much he left it the first good chance he could.

Andrew Cohen is the legal analyst for CBS News and News4.

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