Ashamed to be a lawyer?

Pseudonymous blogging lawyer Private Law Tutor confesses her occasional feelings of “shame” at being a lawyer:

I’ve thought and talked and written about the deep discomfort that ebbs and flows in me with my work. Well, not my work as such, but the work that I do. The industry I work in. The impact we have on lives, as lawyers.

Conflict is normal, and sometimes the people in conflict need help to resolve their disputes. This is what lawyers are primarily engaged in. Dispute prevention and dispute resolution. So our primary purpose is good and honourable. I’m just not always sure that our system and our work meets that standard.

A good friend has asked me a few times now if my discomfort is guilt. I don’t think it is. I think it’s deeper than guilt. After all, guilt can be sorted with an apology. “sorry about that. I made a mistake”. I think my discomfort creeps dangerously close to shame. Shame is a dark shadow that can overtake so much of ourselves. All of us have it lurking somewhere. …

I met with some colleagues recently for coffee. We chatted about lots of stuff. Family. Friends. Fun. Work. Then this comment, like an electric shock, threw me off my path and back into the shadow of my lawyer shame. “I like the research. I like the structured arguments. But you know the bit where we make out the other person to be something they’re not so our client gets what they want. I don’t like that”.

Am I just a “liar liar” who doesn’t even know it?

I was speechless as my mind yelled “Are you for real? Is that the game we’re playing?”. I felt a bit like I was in suspended animation, unable to do or say anything. And with that one comment, all my lawyer shame was back.

Is that the game I’m playing? Is informing someone of the factors that are influential and persuasive, and advising them to present those and minimise and work on their weaker factors, is that as dishonest as that other comment felt. Have I been completely duped by this industry? Am I just a “liar liar” who doesn’t even know it?

And then this “Nice people can’t be barristers, because they just can’t do their job properly”. Another speechless moment. Really? REALLY? Some of my most open and wholehearted conversations have been with my barrister friends. I believe they are nice people and are completely equipped to do their job properly.

So, in discomfort I sit. Once again. It’s dark here in the shadow of shame.

Speaking for myself, I sometimes have analogous feelings about being a lawyer, although I wouldn’t quite label them as “shame”. In my professional practice as a lawyer before coming to CDU as a legal academic, I assiduously avoided practising in the areas of criminal and family law. There were several reasons for that personal policy.

Family law especially in my observation is an area where both parties more often that not are out to exact retribution on each other, sometimes at any cost including the truth. I can certainly understand how people reach that stage of mutual bitterness and recrimination, but I don’t want to spend my working life coping with people in such a state of mind. I know there are others who are better equipped temperamentally to do so.

Victims and their families in criminal matters often report having been as traumatised by their experience with the adversarial legal system as by the original crime.

The reason for my aversion to criminal law practice is slightly different. I worked for a short time as a probation and parole officer for juvenile offenders after my graduation in law. I fairly quickly noticed that I didn’t have all that much sympathy for many of my young clients. I could intellectually recognise that many of them had experienced trauma and disadvantage that made their behaviour at least understandable. However my emotional response was that most of them basically deserved the fate the courts had meted out to them, and in quite a few cases should have been more harshly sentenced in my view (even taking into account criminology research about recidivism and the effects of imprisonment on first offenders).

I didn’t think that was a productive mindset to have in dealing with young offenders, and my conviction was later reinforced when my own immediate family experienced a particularly nasty crime that continues to echo in our lives. I simply would not be able consistently to apply the level of coolness and objectivity that proper legal representation requires. I had no problem achieving that in the areas of public law and commercial litigation where I mostly practised.

The other main reason for my aversion to practising both in family and criminal law was that I was aware that representing a party in those areas very commonly required aggressive cross-examination of the other side. Victims and their families in criminal matters often report having been as traumatised by their experience with the adversarial legal system as by the original crime. There’s no way of completely insulating victims (or alleged victims) from such experiences, because the presumption of innocence and a defendant’s right to a fair trial requires a reasonably extensive ability to test and challenge adverse evidence.

However I remain to be convinced that justice usually requires the sort of nasty, aggressive cross-examination that one often sees in criminal matters, especially though not exclusively from defence counsel. It’s not quite shame, but I’m certainly not proud to be a member of a profession which continues to permit and even aggressively defend the continuation of such practices with fairly minimal constraint except where children or other “vulnerable” witnessses are involved.

Is a witness whose evidence is exposed by cross-examination as containing inconsistencies more worthy of being believed than a glib, intelligent, well-rehearsed liar?

It’s not even clearly demonstrable that such techniques assist in getting to the truth, or that either judges or juries are very good at detecting the truth when they hear it in any event. Is a witness whose evidence is exposed by cross-examination as containing inconsistencies more worthy of being believed than a glib, intelligent, well-rehearsed liar? Is someone temperamentally able to withstand the pressure of aggressive cross-examination more credible than someone who can’t? As Barbara Tversky and George Fisher argue:

Bias creeps into memory without our knowledge, without our awareness. While confidence and accuracy are generally correlated, when misleading information is given, witness confidence is often higher for the incorrect information than for the correct information. This leads many to question the competence of the average person to determine credibility issues. Juries are the fact-finders, and credibility issues are to be determined by juries. The issue then arises whether juries are equipped to make these determinations. Expert testimony may not be helpful. Indeed, since the very act of forming a memory creates distortion, how can anyone uncover the “truth” behind a person’s statements? Perhaps it is the terrible truth that in many cases we are simply not capable of determining what happened, yet are duty-bound to so determine. Maybe this is why we cling to the sanctity of the jury and the secrecy of jury findings:

We can put such questions before the jury entirely without fear of embarrassment, because the way the jury resolves the questions and, in all likelihood, the soundness of its answers will remain forever hidden. Perhaps the allure of the black box as a means toward apparent certainty in an uncertain world has tempted us to entrust the jury with more and harder questions than it has the power to answer.

The courts’ reliance on witnesses is built into the common-law judicial system, a reliance that is placed in check by the opposing counsel’s right to cross-examination—an important component of the adversarial legal process—and the law’s trust of the jury’s common sense. The fixation on witnesses reflects the weight given to personal testimony. As shown by recent studies, this weight must be balanced by an awareness that it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.

I’m not arguing that either jury trials or the adversarial system should be abolished. However, given the well-documented limitations on the ability of that system to detect truth reliably, surely there is a persuasive argument for greater limitations on the ability of counsel to cross-examine witnesses aggressively and thereby inflict surplus trauma on already traumatised people. Maybe the “shame” label is justified if we as a profession fail constructively to address such issues in light of the findings of modern psychology (including the research of Jonathan Haidt about how humans reach moral judgments).

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Paul Frijters
Paul Frijters
9 years ago

yes, the ‘arguments for sale’ bit is shameful. Plenty of that in economics. The economists writing reports to support the recent media blitzes for the mineral council or the tobacco industry probably had to keep their noses clenched and keep their minds on the money. It is worse than prostitution because that at least is a desired service without obvious third-party loss.

Patrick
Patrick
9 years ago

I have applied a similar career policy, for largely similar reasons.

The line about ‘nice people can’t be barristers’, that upsets her so, is certainly not true. It almost helps to have a relatively affable approach to life and others, from my observations, although you also have to have the old fire in the belly bit when it comes to your cases.

wilful
wilful
9 years ago

In anecdotal support of your misgivings about family law, I can reflect on my sister’s recent experience. She lost and slot badly, because she had no money to represent herself, the judge was disinterested, and the husband’s lawyers were reprehensible, with no interest whatsoever in the truth, the interests of the Court, the child that was being contested or the Family Law Act. They threw every bit of sh*t at her that they could invent (and it was basically all made up) and they got away with it. They had a barrister, she’s a part-time school teacher, the whole thing left me feeling sick to my stomach. I do not trust or expect justice in the family law courts in Australia any more. The lawyers involved should be deeply ashamed of themselves.

derrida derider
derrida derider
9 years ago
Reply to  wilful

“… the judge was disinterested …”
I certainly hope so.

I think you mean he or she was uninterested. /pedantry

wilful
wilful
9 years ago

yep, I thought of editing it before but failed to do so. The judge was not disinterested, the judge was bored.

Jim Rose
Jim Rose
9 years ago

Much of the job of lawers is to represent the unpopular and the unpleasant. that job does not attract people whose second choice career was in nursing.

Danielle McCredden
Danielle McCredden(@danielle-mccredden)
9 years ago

Interesting thoughts. The things that get to me are the commentaries which suggest that lawyers in private practice are just money-grubbing scam-artists. Sometimes that makes me pause and is a little harder to shake off than the lawyer jokes and other asides. I wonder whether people really do think that about me.

Most of this is in the nature of perspective. Working in insolvency law, I work on behalf of creditors one day and debtors the next, but at least personally, I like to think that what I am doing is worthwhile and not evil.

Jim Rose
Jim Rose
9 years ago

the guy in the movie clip insert did not like to defend people who were not guilty. (I watched the movie last night on cable. OK enough.)

If they were found guilt, his father advised him that this would haunt him for a long time because of any actual or perceived failings in his running the defence.

cbp
cbp
9 years ago

I think it’s the $200 ‘stamp-licking’ fee that bugs most people.

Pedro
Pedro
9 years ago

I haven’t got the emotional resilience to deal with family law and kudos to those who can. Sometimes it is easy to imagine things would be better without lawyers, but then a client rings you to talk about their wonderful experience in a no representation tribunal where the magistrate turns out to be a rude cunt totally uninterested in applying the actual law as clearly written in the statute.

JB Cairns
JB Cairns
9 years ago

There are lawyers in the USA but here in Asutralia we follow the UK in having solicitors and barristers.

Personally I prefer baristas

Patrick
Patrick
9 years ago
Reply to  JB Cairns

Alas Homer your humour is as out of date as your politics, these days the tendency is to have Australian lawyers and legal practitioners.

Brett Dawson
Brett Dawson
9 years ago

Jim Rose said
‘Much of the job of lawers is to represent the unpopular and the unpleasant’.
Don’t you mean ‘misrepresent”?
When the other side says ‘your client’s pants are on fire’, the ‘job’ is to say ‘no they’re not’
Even when they obviously are.
Doesn’t do anyone much good, in the longer term, actually.

Patrick
Patrick
9 years ago

For all the angst it is worthwhile looking for real alternatives. French litigation, for example, is almost the polar opposite of ours but in it’s capacity to inflict harm to families or to wrong victims is as bad if not worse. It compounds this by skittering even further harm to those accused of crimes.

So scrap that example.

Italian and southern European courts are a clusterfuck generally, and only called courts by linguistic mistake, it would seem.

In the good ‘ol days family law did not exist as a major practice area, I doubt that was better!

From what I’ve heard the Roman system was reasonably fair, is SL or another classicist around?

Tony Healy
Tony Healy
9 years ago

Ninety eight percent of lawyers give the rest a bad name.

Patrick
Patrick
9 years ago
Reply to  Ken Parish

Hi Ken – I wasn’t really ‘talking’ to you, I have a reasonable idea where you stand vis-à-vis civil and common law systems.

I agree with your points, the irritating bit is that they are all matters, except perhaps (2), wholly within the ambit of each Court’s own powers to regulate its affairs under a practice note or procedural regs. Their failure to do so effectively, however, suggests that their residual attachment to ancient common law principles is stronger than one might wish, and maybe they do need some statutory direction to help them get over it. In which case your points 1, 2 and 3 would appear to be an excellent starting-point. Maybe you should email them to the ALRC!

On hot-tubbing, I’ve been (indirectly) involved in a couple of (non-criminal non-family!) matters where this has been very effective, to the extent that I think it should actually be the default, if not joint expert briefs. It’s amazing how few real experts there are, parties can be literally scouring the globe for appropriate experts, and given the expense and effort involved I would think that it would be reasonable for the Judge to require the parties to jointly brief an expert.

The only complication is that the best expert may have already advised one party – however, this should not ordinarily be a bar to their being jointly briefed, as the whole point (in form) of their role is to advise objectively within the domain of their expertise. Any concern parties’ had with this could be dealt with by specific applications to the Court to strike out that particular expert from (eg) the other party’s list of appropriate experts – more often than not I suspect the Court would not be convinced of this.

Jim Rose
Jim Rose
9 years ago

Ken, Gordon Tullock wanted to abolish juries and the adverarial court system

Pedro
Pedro
9 years ago

Ken, given the nature of our duty to the Court, I should have thought unsubstantiated allegations of such a serious nature would be verging on misconduct. I’m a commercial lawyer so I don’t see quite the same things, but I’ve no doubt that it is a breach of my professional duty to support my client doing wrong; and I don’t think you can hide behind “I am instructed”.

Brandis in the Oz today makes a good case for certain lawyers bringing us into disrepute with pathetic excuses of avoiding the right thing.

JB Cairns
JB Cairns
9 years ago

I didn’t know we had enough Jews to serve in Jewries

Jim Rose
Jim Rose
9 years ago

is this problem of trial court conduct not better handled through the size of the discount at sentencing for a plea of not guilty?

It has been held by the High Court that an accused who exercises their right to trial cannot be penalised for having done so. The court judges an offender for the crime, not for the defence.

On the other hand, an offender who pleads guilty is entitled to receive a discount in sentence.

In New South Wales, the guideline judgment of R v Thomson is the discount should be in the range of 10-25 per cent. is that too low?

The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction.

with a incentive compatible guilty plea discount, more trials will be of defendents who are not guilty. Their right to an effective defence is separate from any wrong that another did to the victim of a crime that they did not commit.

JC
JC
9 years ago
Reply to  Jim Rose

Ken,

Forgive him as the idiot doesn’t know what he’s saying 99.99999% of the time.

Every dog turd on every nature strip is looking for Homer’s shoe sole.

JB Cairns
JB Cairns
9 years ago

How is it offensive Ken?

Pedro
Pedro
9 years ago

Yes Ken, another species of wrong going undetected, you could even be at the point that failure to coach would be a breach of duty to the client. “So tell me, did he ever touch the kids inappropriately, because would be very important to the custody terms?”
Let’s hope that judges are good at self-directing.

Jim, I’ve read some very disturbingh articles about the way plea bargain offers and sentencing threats are used to coerce guilty pleas in the US.

Homer, three guys go into a bar, a pommy, a kraut and a jew … Understand the problem now?

Jim Rose
Jim Rose
9 years ago
Reply to  Pedro

the link between admissions of guilt and shorter prison stays is well known. innocent people do not plead guilty

inducing a larger fraction of guilty defendants to voluntarily sort themselves from the innocent, such sorting comes at the cost of imposing short sentences on guilty defendants who plea guilty.

Patrick
Patrick
9 years ago
Reply to  Jim Rose

Are you really under the impression that innocent people don’t plead guilty?

If you have no experience or expertise in criminal law whatsoever why are you commenting on it in such a didactic manner?

JB Cairns
JB Cairns
9 years ago

By the way the first time I heard this was in a jury room and no-one ,naturally, found it offensive.

JB Cairns
JB Cairns
9 years ago

No Pedro.
Indeed your analogy is neither appropriate nor accurate.

It would take a very small mind to think it is so

Pedro
Pedro
9 years ago
Reply to  JB Cairns

I might have a small mind, but it is big enough to know that people don’t much make jokes based on racial categories any more. I’m guessing that’s why Ken thought it borderline.

Jolly
Jolly
9 years ago
Reply to  Pedro

I agree with you Pedro. Unenlightened people make racial jokes. Having a degree does not equal to proper upbringing and real education of the mind. Crassness breeds crassness.

jennifer
jennifer
9 years ago

Upon the subject of aggressive cross-examination and trauma in the witness box.

Was listening to a meeting that Northern Territory Chief Justice Riley held with community members regarding sentencing. As you can imagine there were people there who were aggrieved by the system and by sentences they considered to be utterly beyond parity. His explanations regarding the role of the judge and judicial discretion were patient and respectful. Of course they probably didn’t change the anger and sadness in the aggrieved. Nor did he really inform the uninformed about roles of the legal players, even though he reiterated those roles simply and elegantly. Nevertheless it was Chief Justice Riley’s tone that enabled at least one member of the audience to keep listening and to continue to enquire with all his dignity intact, and despite all his frustration with a system he thought he understood.
The tone came about because the Chief Justice was listening, prepared to stand in the shoes of the audience members in order to find out something new rather than to confirm any old prejudice. As far as I understand it, cross-examination doesn’t have this purpose in the adversarial system – it is there to confirm evidence of a pre-judged position. Even a gentle bullying and manipulation are likely to follow because it is not the truth that counsel is looking for; it is what can be proved and what will convince a jury or a single judge.

JB Cairns
JB Cairns
9 years ago

It was a play on words and if you find that offensive then you are simply stupid.

It is pleasing to know you are so politically correct however!

Jolly
Jolly
9 years ago
Reply to  JB Cairns

Cains, grow up mate. In the first place making racial jokes and then passing it of as ‘play of words’ is juvenile. Secondly, calling someone with a different view, “stupid” is reprehensible. Probably poor you were brought up without manners; my sympathies. One can never buy class, mate. Political correctness is about showing consideration to fellow men.

jennifer
jennifer
9 years ago

And I thought I was veering all over the topic …

JB Cairns
JB Cairns
9 years ago

No-one here knows why it is offensive either but then it is hard to argue anything when no arguments have actually been made.

must be a lawyer thing

jennifer
jennifer
9 years ago

…… or possibly not worth saying in the first place – do you have any inkling at all about how far you are being indulged over this? Your ‘implied right to freedom of political speech’ is being judiciously upheld – but go too far and you’ll end up in Anti-Discrimination Act Territory.

Thomas the Tout
Thomas the Tout
9 years ago

Interesting conversation (apart from Homer, who probably intended no offence).
As a broad brush, once a government starts tinkering with the law, that area goes to custard. The business of law should be about providing stability; when the government uses it for social engineering, then the stability has fled the field, and the players all are stressed
Workers compensation – ought to be straight forward, but now quite complex.
Family Law – beset by its own superior self-belief. Slow and cumbersome, and layers of rules (try looking at Child Support).
Traffic Law – about to become a boutique area. Again, layers of rules (rather than suture the laceration, put on a bandaid; when the blood comes through, apply another; etc)
Personal Injury – the rot started with traffic injury claims; then got worse.
Crime – darned near anything is now a crime, with much of the discretionary solutions removed from the Court.
Human Rights etc – a toxic area.
Well, I now work in Probate and Wills – even that can have raw emotion.
As an aside, I have just finished an unhappy contested estate – does the difficult client know how much their frolics injure my reputation? There can be bad lawyers, and there are bad clients too.
As for the rip/tear/hack/slash cross examination, I have always told my juniors that you only do that if you have won the case, and there is little point doing it then. Quiet and polite questioning will get far more answers than jousting.

I would like to think that the public appreciate us; but they do not, and probably never will. So I tell my juniors that we can never expect to be liked, but we must do all that we can to attain and maintain respect (individually and as a profession).

Julie Thomas
Julie Thomas
9 years ago

Homer/JBC

You do know why that joke isn’t funny in this forum; it might be funny in a jury room particularly if you were Jewish or even perhaps had a good friend who was Jewish.

It’s a real pain in the arse that people like you and me who just aren’t at all racist, have to moderate our freedom because some other people are racist and can’t be trusted not to behave nicely in company.

I know I’m not racist because a while ago while in the Qld Art Gallery, I was looking an artwork by an Aboriginal artist, not a dot painting, but one of those post-modern ones with writing and stuff all over it, and I started to laugh. Can’t remember the joke but it was better than yours are. When I got to the label, on the left side of the painting, the title was “If you are laughing you aren’t racist”.

Do you know you aren’t racist?

Another waffle about political correctness, I was in the op-shop today and I saw a little girl grab one of those old “gollywog’ dolls out of the box of stuffed toys. She just loved it and wouldn’t give it up despite her mother suggesting other more appropriate toys. It was a wonderful golly, in perfect condition; I could understand why the little girl wanted it but her mum was worried about what to call it, how to explain why the teachers at pre-school would be shocked and wouldn’t like it etc. And to add to the post-modern moment, the woman behind the counter was Aboriginal!

Jim Rose
Jim Rose
9 years ago

patrick, in error-free courts, no innocent defendant would ever plead guilty.

In fact, given the imperfections of the system, it has been argued that guilty pleas can only help the risk-averse defendant, guilty or innocent.

Guilty pleas count little in sentence reduction unless they are made early in the process. This is well before the strength of the prosecution case is clear, and time on remand is important to avoiding spending more time on remand that would be on the proper sentence.

Who among the innocent plead guilty for such a small reward? The guilty plea guilty because they know that they will most likely go down the steps anyway for longer!

Usually the argument is (i) innocents stand trial more frequently; (ii) there is pressure for innocents to plead guilty.

What hurts the innocent is rules of evidence and criminal procedure that do not separate the guilty and innocent. Fix the rules of evidence.

Russell
Russell
9 years ago

I started reading … lawyers, shame … and thought “Prompted by the latest Morgan ‘Image of Professions’ poll which shows lawyers racing to the bottom”

And then I thought “I know, she’s going to say she’s ashamed at the way lawyers treat their staff”, but no. Despite all I’ve heard at meetings of the Australian Law Librarians Association, nothing about how lawyers treat their staff.

Peter Patton
Peter Patton
9 years ago

Oh god, is that one of your students? Tell the precious little narcissist to get another job. 99% of people having to listen to somebody go on like this in real life would just slap her.

Steve at the Pub
9 years ago

Oh Boy, where do we start with this one? To paraphrase Winston Churchill, there is much for lawyers to be ashamed of.

This is a profession that has no productive function,and rides on the coattails of the achievements of others. Its very nature is to tear at the fabric of the society which created it.

To be a lawyer and maintain one’s humanity is a difficult task, one that requires constant conscious effort, and is achieved by but a minority.

The above (hyperbolic) comment “98% give the rest a bad name” is a not inappropriate observation.

Such a diverse profession is difficult to encapsulate. Law differs from most other professions in so many ways that it would be impossible to catalogue them all.

Practice ranges from 35th floor CBD based national firms (with a whole range of characters from naked commercial amoral equity partners to exploited and disillusioned juniors) through generic suburban and regional practices, idealists and zealots in legal aid & other pro bono style advocacies, general counsel billing to the beat of the corporate stroke, working stiffs churning out generic templates at low pay for online “contracts-R-us” factories, people in another vocation who practice law on a salary as part of that vocation (here we find uniformed police officers, public servants, etc). Then there are barristers, who pretty much go through the aformentioned range of practice type.

There is a saying about (and by) police, that in the end society boils down to “them and us“. A far greater divide is between lawyers and society. It is apt to paraphrase the old saying “once a police officer, never a man” into “once a lawyer, never a human“. A crass generalisation, but one with some foundation and not without merit.

The comments thread above seems to focus almost exclusively on criminal law, with a side trip into family law. Both are on the peripherals of law practice. Family law practitioners are the lepers of the law profession, and acutely conscious of both their low position in society, and the contempt in which they are held by “decent” lawyers.

The practice of law requires a different thought process to instinctive & traditional human thought. This is part of law school, to teach the students to cease thinking like people and think like lawyers. Not all (perhaps even a majority) do not posses sufficient mental clarity to undergo this process without emerging pretty much brainwashed.

The practice of law in one phrase: “It is all talk”. (If a lawyer is exhibiting extreme hubris, it is because they lack the self-awareness to absorb that phrase.)

That law is considered a “pure degree” is goddamned joke. A sick joke on society. It is the most ambivalent and ambiguous of professions.