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Now you're thinking like a lawyer.

This piece appeared in 1975.

The popularity of legal careers requires no elaborate explanation. Lawyers run the country.

As a matter of fact, almost every major political reform of the past decade-with the significant exception of no-fault auto insurance-has had the important side effect of increasing business for lawyers. The Tax Reform Act of 1969 is known in professional circles as the "lawyers and accountants relief act," because of the wide areas of complicated litigation it opened up. The same could be said of the Freedom of Information Act, the campaign spending reform act, and the acts creating new regulatory commissions, such as the Environmental Protection Agency.

It would be absurd to suspect that this common feature of such disparate reforms-all associated with what has come to be called the "public interest law movement"-is the result of a conspiracy led by Ralph Nader and Senator John Tunney, secretly financed by the American Bar Association. But it would be equally absurd to write it off as a coincidence. It is actually the result, not of any overt conspiracy but of a process taught at all law schools across the country and known as "thinking like a lawyer." Thinking like a lawyer means believing that legal tools-primarily the adversary system-are ideally suited to solving all problems.

What the adversary system does is pit two sides against one another, with self-interest motivating their lawyers less toward the pursuit of truth and justice than toward the pursuit of victory. Between the lawyers stands a judge, who in the dominant tradition of American law is not a seeker after truth or justice either but rather a neutral referee seeking only to ensure that combatants obey the rules of fair play.

It is possible for disputes to be handled otherwise-by judges who do seek justice and truth (as they do in England in at least some cases), who keep lawyers out of their courtrooms and take responsibility themselves for protecting each party's rights (as they do in a few American small claims courts). It is also possible for disputes to be handled by mediators who seek solutions that are fair to both sides and that will enable the disputants to go forward as friends rather than enemies.

But lawyers are doing very little to encourage any solution of disputes outside the adversary system. When the Los Angeles County Bar Association attempted to provide arbitration of disputes between attorneys and their clients, the lawyers refused arbitration more than half the time.

Death brings out what would seem to be an inevitable need for lawyers. You need a lawyer when you make a will and your family may need a lawyer when you die. But even these real needs are not as great as the legal profession would have you believe. Most wills, for example, are almost all "boiler plate"-chunks of colorful but standardized verbiage required, where simple declarative sentences might otherwise do, to satisfy the voodooistic needs of the legal profession. Determining which chunks of boiler plate you need is usually a simple process that could be done quite cheaply by walk-in clinics. As for probate, Wisconsin is the first state in the country with a do-it-yourself probate law. It permits you to settle your parents, or your spouse's estate without paying thousands of dollars to lawyers, as you do in most states. Naturally it was opposed by the state bar.

The other occasions when everyman needs a lawyer are divorce and auto accidents. Both can be solved by the no-fault concept. Under the adversary concept in divorce cases, every Othello not only must suffer an Iago but must pay him for his services. Desdemona must do the same. Under nofault, simple forms are filed with the court and a divorce may be obtained without involving the parties in life-long hatred of each other.

The auto accident is the most absurd situation of all for adversary proceedings. Remember the word is "accident." No one did it deliberately or recklessly-if someone did, there would be criminal prosecution. In the typical "accident" case, each party is trying to prove the other was at fault when no one was really at fault. This involves both parties in lying, which in turn makes them hate the other guy even more. In no case does our righteous anger against the lies of another mount to such heights as when we are lying, too.

This particular charm of the adversary system was well illustrated in a recent corporations class at Harvard Law School. The professor proposed a "hypothetical": Two men want to buy a photography business owned by a third man. Although they have not settled on the exact price, all three are amicably agreed on the general contours of the deal. They come to you to write up a contract for them. What's the first thing you should do? The answer: send either the buyers or the seller out to get another lawyer because for one lawyer to represent all of them would be a "conflict of interest." The class was divided down the middle aisle, with each half of the room assigned to represent one party to the deal. By near the end of the hour, several promising areas of discord had developed. The last few minutes were spent discussing whether the two buyers shouldn't really have had separate lawyers as well. As we put it in 1974, if paranoia is the major mental disorder of America, lawyers are its Typhoid Marys.

If, as it is moderately popular to suppose, the United States has passed its zenith and entered a long period of decline, anthropologists of the next century will look back in amazement at an arrangement whereby the most ambitious and brightest members of each generation were siphoned off the productive work force, trained to think like a lawyer, and put to work chasing one another around in circles; where, as things got worse and worse, social reformers, cured by the Republicans of the habit of trying to solve all problems by throwing money at them, took to throwing lawyers at them instead; and where the portion of the population that went through a typical year happily oblivious of the legal profession slipped from two-thirds to one-half, to a quarter, to none at all.
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Title Annotation:The Culture of Institutions
Author:Kinsley, Michael
Publication:Washington Monthly
Date:Feb 1, 1989
Previous Article:Firemen first or how to beat a budget cut.
Next Article:Yes, but where are your credits in Recess Management 101?

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