awyers As Healers Not Hired Guns

My son, Phil, graduated from the University of Iowa law school in May and will soon take the bar
exam. He was a far better law student than I was and, I suspect, will be a better lawyer than me.
When, at the age of ten, he told me he was going to be a lawyer I had feelings of foreboding.
Those feelings remained as his commitment to the law as chosen profession continued to grow.

I feared the law school experience would forever change him, that his innate sense of justice
would be eclipsed by the laws tendency to favor winners over losers. I am both relieved and
proud to say that three years of law school have not severely damaged Phil and that he has
chosen to pursue a career of public service rather than a six figure salary and a steep climb up
the partnership ladder.

At church this morning I was not particularly present, reflecting instead on the law as a jealous
mistress and the elemental idea of the spirit of the law versus the reality of the letter of the
law. I grabbed hold of a thread of time and followed it back to my early years as father, listening
to my only son announce his future. I wondered why, nearly twenty years ago, I feared for my
sons life because he wanted to do what I was doing.

At about the same time I happened across a quote by Warren Burger, a former Chief Justice of
the U.S. Supreme Court, who observed in a 1984 speech:

The entire legal profession lawyers, judges, law teachers has become so mesmerized with
the stimulation of the courtroom contest that we tend to forget that we ought to be healers
healers of conflicts. Doctors, in spite of astronomical medical costs, still retain a high degree of
public confidence because they are perceived as healers. Should lawyers not be healers?
Healers, not warriors? Healers, not procurers? Healers, not hired guns?

Chief Justice Bergers questions, like Phils announcement, haunted me for years. Restorative
Justice has helped to answer the questions in the affirmative. But the answer gives rise to more
questions: how can a lawyer make a living, represent a client zealously, abide by ethical rules
and professional norms, and yet be a healer rather than a hired gun in the adversarial culture so
predominant in our existing American system of justice?

Abraham Lincoln had a vision that our country could be free of slavery and the courage to fight a
war in order to realize that vision. Few, however, think of the Lincoln who made a living as a
lawyer long before becoming president, the lawyer who advocated for peacemaking first and
litigation only as a necessary and last resort. In notes prepared for a lecture and preserved in his
Collected Works, Lincoln called upon the lawyers of his day to:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to
them how the nominal winner is often a real loser in fees, expenses, and waste of time. As a
peacemaker the lawyer has a superior opportunity of being a good man.

Most lawyers today have failed to heed Lincolns admonition and find themselves facing a crisis
of meaning, distrusted by the public, stressed by overwork, and questioning the value of their
contribution to society.

In addressing the spiritual crisis afflicting American lawyers, Professor Joseph Allegretti in The
Lawyers Calling painted a statistical portrait of the sad state of the legal profession, finding that:
Lawyers are almost four times more likely than other people to be depressed;
Forty-four percent of lawyers report not having enough time for their families and fifty-four
percent report not having enough time for themselves;
Only one-third of lawyers report that they are very satisfied with their work;
Thirty-one percent of Americans believe that lawyers are less honest than others;
Seventy-three percent of Americans think that there are too many lawyers.

In Transforming Practices Steven Keeva addressed the same spiritual crisis. Keeva argued that
many lawyers undergo a disintegration as human beings and that this process begins in law
school, which he characterizes as a map without a meaning, and continues on with the law
firm map which is one in which the lawyer must win at any cost.

In Lawyers as Peacemakers, attorney J. Kim Wright concurs with Keeva that the problem
begins with our law schools and the American method of teaching law in which young minds are
exposed to the adversarial paradigm in overt and subtle ways. Wright speaks from experience
when she states that:

The competition started when we applied and vied for a seat in the class, continued with the
fight for grades and rank, and extended into law practice; . . . we are trained in the skills of
litigation . . . we watch our backs, we hide the ball . . . the view is of a world where individuals
protect their rights, territory, property, and selves from other individuals.

For Wright, this paradigm results in a separation of the lawyers needs from his / her values and
places needs and values at odds with each other.

In a 2003 speech Justice Robert Young of the Michigan Supreme Court addressed the issue of
zealous advocacy and the consequences of blind adherence by lawyers to the adversarial
paradigm:

Increasingly we have elevated to cult and celebrity status rogue lawyers whose primary tactics
are to intimidate and to lie anything to simply win. I see all too this same phenomena in the
courtroom. Too many lawyers who are officers of the court charged with the duty to assist the
court, now believe that zealous advocacy includes the right to blatantly mislead and misrepresent
facts and the law in order to win.

Attorney John Allen, writing in the Michigan Bar Journal, echoed Justice Youngs sentiments
stating that many in the legal profession argue that a lawyers ethics require that every cause be
pursued with zeal, bound only by the outer requirements of law. In citing a colleague, Allen
observed too many lawyers hide behind the ethical duty of zealous advocacy to justify all
manner of outrageous misconduct.

Most who enter law school enter with noble intentions. The traditional American legal education,
however, with its embrace of the adversarial system, makes it difficult for the pure of heart to
remain that way. Well before graduation, dreams of serving the poor and disenfranchised give
way to a desire for the comfortable life. In the past, once the new lawyer entered the mainstream
of legal practice, it was unlikely that a win at all cost career could be avoided. That may not be
such a sure thing as our present century moves forward. There are signs that a healing model of
law practice is gaining momentum. Law students, law professors, judges, and practicing lawyers
from across the country are taking a second look at what they want for themselves and for the
legal system that they must work within.

The desire for personal satisfaction and meaningful work may be on the ascent at the same time
that an emerging generation of educated Americans are placing lifestyle and after work pursuits
ahead of status and big bank accounts. A second emerging trend, already witnessed in the
health care field, is the insistence by the patient / consumer to be more involved in his or her
care. If legal clients begin to make demands for results that are less divisive and more satisfying,
then a paradigm shift could occur.

Its difficult to predict what impact the unfolding economic reality will have on the legal profession.
Will the shrinking economy result in lawyers remaining entrenched in the business as usual
mentality or will fewer dollars empower clients to demand satisfactory outcomes without the time
and expense of the litigation process which result in roll the dice trials? Will law schools
embrace the healing model and reform their curriculums? Will judges take a leadership role and
insist that mediation become the norm for cases lingering on their overcrowded court dockets?
Will attorneys hang up healing lawyer shingles rather than give in to the lure of security and
financial reward?

Only time will tell if what is now an experiment by the innovative and courageous will become the
new reality. I am hopeful that my son and his classmates will become practitioners of a new
reality. Fred Van Liew