Wednesday, July 18, 2012

The Moral Compass of the American Lawyer - Richard Zitrin and Carol M. Langford

The Moral Compass of the American Lawyer, published in 1999, has not become obsolete.  Almost everything in this book is still true.  However, I should note that it's not exactly my place to verify these stories as true.  I can only confirm by circumstantial evidence that they are true, and I think the only people that would seriously denounce this book are lawyers at big firms.

This is probably the main reason I liked this book: while it has many targets, big law firms face the firing squad front-and-center.  I have been attacked in the past for "hating journals" just because I failed to make one and perhaps I only "hate big law firms" because I failed to get recruited by one.  That may be so--but apart from all of their other various modes of deceit and greed--recruiting is the only aspect I've been able to observe (albeit from a distance).  I was told my friend didn't get a call-back from Sidley, even though she was great, really great, because they just met too many other great people at OCI.  Well they do not even come to BLS.  They do go to NYU.  Thus there is approximately 0.01% chance that I can work at Sidley if I go to BLS.  That 1/100th of a percentage point is there in case I was #1 in my class and somehow managed to get a "special" OCI interview, which must happen sometimes.  I am not great.  I write blog posts making foolish statements.  It shows remarkable immaturity, what I write.  It's frankly juvenile.  Clearly there is no place in the culture of that firm for me.  I lack the requisite fastidiousness.  I like to cite cases specifically because one of the people involved happens to be named Batman (seriously). I wear Polos and dirty Converse to work because it's 100 degrees outside--I only wear a suit when I need to go to court.  I put on Open Mic events at BLS just so I can hold a microphone and force 15 people to listen.  I run for President of BLS (of the SBA) and tell people that a vote for me is a vote for anarchy.  I get 33% of the vote.  I have not cut my hair since February.  Nor have I dry-cleaned my suits since May, nor have I ever ironed one of my shirts since starting law school.  I am a penny-pincher, and I hate most people.  On the other hand, I have a tremendous singing voice.  

There are probably those that don't think big firms are evil, but are merely stuck on a course from which they cannot divert.  Take for example the 1L Luncheon I went to about a 1 1/2 years ago with Paul Weiss.  A partner said, "Sorry, we know it's not fair, but we can only consider people in the top 10%.  I know it's not right, but that's just the way it is."  So at least they have the decency cursorily apologize for their elitism.

The only thing "outdated" about The Moral Compass of the American Lawyer is its (fair) absence of material on e-discovery.  E-discovery is now what people like myself dream of doing with their lives.  The proliferation of contract attorney positions shortly after the publication of this book has opened up a few more job opportunities for graduates while effectively shutting them out from far more.  In the name of economic efficiency and flexibility, law graduates face precarious employment on a more dramatic scale than in years past.  

Chapter 3, "Power, Arrogance, and the Survival of the Fittest," is this book's foray into the world of discovery, and it does at least drop a hint about the future:

"As the size and scope of the nation's largest law firms increased, so did their concentration of power, leading to what many see as the death of the law as a profession.  The efforts of many law firms to use discovery not as a means to an end but as a profit center underscores this feeling.  Many stories like this one circulate in trade journals or on the Internet: A senior corporate counsel interested in moving back to private practice suggested to the senior partner of a large law firm that he would bring with him case-settling skills that could help avoid years of unnecessary discovery.  But the partner explained clearly and bluntly what a terrible idea this was, because it would interfere with the firm's principal moneymaker--discovery battles."  (61)

On a broad scale, this is a book about Ethics and Professional Responsibility, and the ways in which lawyers more often than not use the rules as guideposts for what they can get away with, rather than what they must refrain from.

This book is also largely about how criminal defense attorneys face a moral dilemma when confronted with knowledge that their client is guilty.  This is one of the more interesting parts of the book.

Some of the other topics covered include class action lawsuits, tort reform, secret settlements, "ambulance-chasing," the Rules of Evidence and psychological persuasion of the jury, and whistle-blowing.  All of them are fairly interesting and the book is more entertaining than The Lawyer Myth, for example (reviewed here, but not as good as 1L (reviewed here

I recommend this book primarily for two reasons: (1) It seems like a good substitute for Professional Responsibility, if one plans to take the MPRE before taking the course (as I am); (2) While using some of the tactics from the chapter on "misleading the jury" may not go over well with a professor of Trial Advocacy, they may be useful to know for actual trial attorneys.  However, this book will not help you make it onto Moot Court.

Nor will it help you make it onto a Journal.  While it does provide reasonable citations in the back of the book, there are no footnotes.  This makes it a much more pleasurable read, but also apparently leaves many of the statements nothing more than pure speculation.  I do not doubt the truth of most of what Zitrin and Langford expose--I am sure their personal experience has taught them certain "truths" that won't be validated by scholarly articles--however I could see how certain academics could question the integrity of this book.

There is a lot about the O.J. Simpson Murder Trial in here.  And there are also more than a dozen lurid stories about lawyer misconduct and corporate wrongdoing.  So if you need further proof that society is corrupt practically beyond repair, you may find this book useful.

Moreover, I like almost anything that has to do with Lincoln:

"Even our most sacrosanct hero is not immune.  Abraham Lincoln's most celebrated case was the defense of 'Duff' Armstrong, in which Lincoln used an almanac to prove that the key eyewitness could not have seen by the light of the moon because the moon had already set when the crime took place.  But what is often omitted in the telling of this tale is that 'Duff' Armstrong was almost certainly guilty."  (30)

There's lots about Products Liability and Mass Torts and hourly billing and the adversary theorem--so much that you may feel you've already read a certain section.  But Zitrin and Langford do make slightly different points all throughout their book, though they all center around the same concept: change must come!

At the end, like certain law review articles, they offer proposals for reform.  Of particular interest is the reforms they suggest for law schools.  They first point out that Professional Responsibility (while now required) is hardly the class it could be, and that students often don't get very much out of it.  They also point out that courses that teach interviewing and negotiation skills should become part of the required curriculum.  They also suggest an increase in clinical programs.  BLS has done all of these, though Interviewing & Counseling and the Negotiation Seminar are not required.  (They are taught by one of the legends on our campus though, and worth taking).  Skills credits, however, are required, and may be satisfied by the Clinics, which students are all too happy to take, since it takes about 80% of the anxiety of searching for an internship out.

Interestingly, they do not advocate abolishing the curve.  While they point out problems with the "adversary theorem" they give its role in legal education short-shrift.  They do say that there are certain good things about the adversary theorem, but in school, there is very little positive I can say about it except that sometimes it makes people like myself feel okay about themselves when they make statements like, "We are going to steal all of the A's in this class!  We are going to befriend the smartest people in the class so we will be the only ones getting A's!"  (It never works.)

Few will say that the legal profession has improved since 1999, but I do believe that changes are coming.  At the very least, students frustrated with the current scenario will one day practice, and may try to be the change they'd like to see in the profession.  Slowly but surely, people like the jerk at the Cubs game that told me to shut up when I mentioned Ken Feinberg to my sister when she brought up the possibility of a CTA Train being bombed by terrorists during the NATO summit, will care less about mocking the public perception of what lawyers do and will realize that we are people too, just trying to make a living.  I also won't have to come up with harsh rejoinders to such people like, "I hope you die intestate."

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