In Critiquing the Legal System, Lawyers Can Do Lasting Damage
When we criticize, we must ensure that we mean for those criticisms to be taken seriously to avoid tainting the public's perception.
December 20, 2018 at 08:02 PM
6 minute read
Are you tone-deaf? And no, we're not asking if you can carry a tune. We want to know if you are tone-deaf to your attacks on the American legal system.
We are sure over the last few years you have recoiled on at least a few occasions when politicians (no one in particular, of course) or television talking heads have criticized our country's legal system. Whether it is attacking judges as biased or accusing career government lawyers and investigators of making politically motivated decisions, we're sure you have felt or perhaps even said out loud that these attacks on the American legal system are a threat to our democracy or, at least, unbecoming of our country's leaders.
But what about when you attack people within our legal system? When was the last time you told your client or a colleague that the judge assigned to your case was a "good draw" because of the political party of the politician who appointed her? How about the last time you told your client that your opponent was "totally unreasonable"? Or that your opponent's argument was "frivolous?" To be sure, there is a substantive difference between calling your judge a good draw or your opponent unreasonable and outright accusing a judge, prosecutor or investigator of corruption or bias, particularly politically motivated bias. Nevertheless, in their own way, each is an attack on the credibility of our legal system.
These types of friendly-fire attacks from lawyers probably reflect nothing more than a code of cynicism that lawyers think they are entitled to keep. That is, lawyers (this editorial board included) often assume that their law degree is a license not only to practice law but also to criticize it and the people within the legal system with impunity. We assume that our colleagues, clients, family and friends understand that our commentary is not meant as an indictment of our legal system by those who know it best; instead, it is an innocent manifestation of our frustration from hard cases won and lost.
But, of course, it is difficult for nonlawyers to dismiss a lawyer's attacks on the people within the American legal system as innocent venting. On the contrary, lawyers' attacks land with a unique sting and might even have a greater impact than criticisms from nonlawyers. For this reason, as lawyers, we should take a hard look at our contribution to the public's distrust of legal institutions.
With your clients, try to use objective and nonpolitical language to talk about judicial or prosecutorial decisions and don't lean on the easy crutch of explaining a bad outcome by blaming the decision-maker, which only hardens public distrust of judges and prosecutors. No judge or prosecutor is perfect, and they certainly are going to make decisions that you disagree with and that are adverse to your client. But that doesn't make them unprofessional or motivated by anything other than their best judgment.
Likewise, treat your colleagues with respect (and remember, your opponents are your colleagues). Your colleagues on the other side will, of course, have a different perspective than you on the law and the facts, and you will likely believe that their perspective is wrong, but having a different perspective does not make your opponent unreasonable, unethical or unprofessional. It is a great disservice to the profession and the legal system if you act like it does.
Finally, and perhaps most importantly, with your friends and family, some of whom we hope are not lawyers, be an educator, not a cynic. For example, if the conversation turns to the Supreme Court, take the time to explain that, as we all know, 9-0 decisions are much more common than 5-4 decisions. Explain that although it can look like decisions are politically motivated, it is typically a justice's judicial philosophy, not political views, that drive his or her decisions. Or, if they ask you about the judge, the lawyers or the investigators from a case that was in the news, remind your friends and family that they are almost certainly good and fair-minded people who were just trying to do their jobs the best way they knew how.
In other words, do not forget that, especially to your friends and family, you are the resident expert. Just as you would give more weight to your banker friend telling you that Wall Street is corrupt or a doctor cousin telling you that the health care system is broken, your friends and family place great weight on your views about our legal system. If you tell them lawyers cannot be trusted or that all judges are partisan, why would they disagree?
None of this is to say that lawyers should gloss over the flaws in our legal system, which is not perfect. Indeed, lawyers must critique systemic inequities, especially because we have the unique ability to make our system of justice more fair and accessible.
Nevertheless, when we criticize, we must ensure that we mean for those criticisms to be taken seriously, that our criticisms are well-founded and that we are not just thoughtlessly venting. After all, our attacks won't often be taken lightly.
So the next time you cringe at a politician or talking head attacking the American legal system, consider whether you have been singing the same song in a different key and whether you are comfortable being a part of that duet.
The views expressed here are personal to the authors and do not represent the opinions of their employers.
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