THINKING LIKE A LAWYER
by Judge John Kane
THINKING LIKE A LAWYER
United States Senior District Judge
May 7, 2004
This commencement is a joyous event for each of you, your loved ones and for our profession. You have been taught how to think like a lawyer to the extent that we call today your commencement. This is the beginning of a new and exciting stage in your development. Please note this is a commencement and not an interment. It suggests some points and observations I’d like to share with you.
First, an admonition my friend Peter Baird gave his son who was about to be sworn in to the State Bar of Arizona.
Bear in mind that you will soon have considerable power and that it
should only be used with wisdom and compassion. Among others, you
will have the power to destroy with a complaint or a motion or a letter what it took someone a lifetime or even generations to build. You will obtain information in transactions that if divulged improperly could result in disaster - not only for your client, but for you, your associates and the public as well. Do no harm!
Very soon, after attending to that pesky and superfluous instrument of torture called a bar exam, you will take an oath that will bind you for life. Included in that oath is the provision that you will abstain from all offensive personality. That obligates you to practice civility with respect to other lawyers, to opposing parties and to your clients. I suggest that practicing civility in all of your relationships will also contribute mightily to your personal success and the advancement of your professional career. Another provision of that oath is the promise that you will advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which you are charged.
Your professors have quite rightly insisted during your studies that resort to a bleating cry for justice is not an acceptable excuse for sloppy or incomplete analysis. But this is certainly not all you have learned. Whether consciously or unconsciously, you’ve been infused with the belief that the skills you have acquired are to be used in the pursuit of justice. The term "Justice" is exceedingly difficult to define, but we recognize it in the moment.
For the last hundred and fifty years or so, much of American jurisprudence has proceeded on the assumption that law consists of an autonomous body of rules to be used as instruments for maintaining social order. By identifying precedent, it is supposed that nearly all disputes can be resolved by testing the facts presented against that source. It follows that the function of law is essentially not one of pursuing justice, but of determining what result the rule reveals in any particular dispute.
Even those committed to this view acknowledge that there are areas of law in which this test does not yield a conclusive answer, and that in these interstitial areas of uncertainty disputes may be resolved according to moral or other extralegal precepts. We lawyers, however, are trained to maintain a sharp line between law and morality and, by relegating the disputed areas of law to the outer periphery, to reduce to the vanishing point those instances in which good or bad can be considered relevant.
Many lawyers and judges become steeped in this process and present even morally based decisions as the products of a mechanical and value-neutral process over which they have no control. They are known to say to clients, "I don’t know whether you ought to do this or that. My job is to tell you what the law says and leave the decision up to you." Some judges will slink off the bench saying, "Right or wrong, this is the law." My next suggestion is that if you presently find yourself accepting that position, it is time to move on to another line of work, and if you haven’t accepted that position, don’t go there or you will find yourself condemned to a life of mediocrity.
If you limit yourself to logic and a mechanical application of law and legal principles, you will become nothing more than a hired gun, a mere functionary. It is interesting to note that a value-neutral rendering of legal services provides the basis for the proliferation of lawyer jokes. These jokes demonstrate that people believe in justice and use a sort of "gallows humor" to point out how often we lawyers seem to miss the mark in striving for it while nevertheless charging a fee for futile services.
The illusion on which these jokes are based is that lawyers and judges have no justice function. Indeed, almost the only group of people who get skittish about the idea of justice, who become suspicious even hearing the word, are those trained to be advocates, judges, teachers and counselors of the law.
The view that we have no justice function is clearly unacceptable. To say that we have an obligation to be so objective and detached that our work lacks moral content, to say that we blindly apply legal rules without determining whether a pragmatic application accomplishes justice, is to view law as drudgery. One can only perform such amoral exercises for a limited time. I think many lawyers who leave the profession do so because they find themselves on a value-free treadmill, involved in one dispute after another until the activity itself becomes utterly pointless.
At some future event, you may become disillusioned. Your innocence may be shattered. It may be by a senior partner who suggests ever so subtly that you pump up your billable hours, or a client who demands you do something contrary to your best judgment, or another lawyer who double-crosses you or a judge who is peevish and insulting or a former classmate who steals your client.
If you come away from this commencement address with nothing else, my most fervent hope is that years from now when such a catastrophe confronts you, you will remember that there are indeed values that make the law exciting and triumphant and well worth your continuing service and dedication. You will need to reach back to the heart of what you have learned during these past three years. You will need to strip away the mundane irritations of everyday practice and think of why you wanted to be a lawyer in the first place and what profound ideals have inspired you and how hard you have worked to reach them. Perhaps you will need another venue or another role, but nevertheless your career will be worth a renewed effort.
Many years ago, Karl Llewellyn, a great legal educator, said with a phrase well worth remembering, that in any case "doubtful enough to make litigation respectable," there are at least two authoritative premises between which the court must choose. I suggest to you that the only basis on which such choices can be made is to decide which is more just. Given the analytical skills you have acquired and refined in your law school experience, you must now embark on a lifetime journey of discovering what is just. You have indeed graduated to the next level of the profession.
In 1954, exactly fifty years ago, the Supreme Court decided one of its most famous cases, Brown v. Board of Education. Public reaction was intense and came from every point of view. Many lawyers found the writing of Harvard Law Professor Lon Fuller particularly poignant. In his article, American Legal Philosophy at Mid-Century, he described the challenges for a just society in these words:
The prevention of indecencies in the use of . . . power must depend ultimately on the pressures of public opinion, particularly the opinion of the legal profession. This opinion can be effective only if it is informed by a sound philosophy. It cannot be so informed when it accepts a view that treats . . . power as a brute datum and refuses to examine the rational and moral grounds of its justification and purpose.
I suggest that the indecencies Professor Fuller sought to prevent fifty years ago are closely related to the disenchantment of many of those who today abandon the profession. Performing legal services in a mechanistic, value-free way and refusing to examine the moral and intellectual justifications for what one does will turn even the most lucrative law practice into a humorless and moribund job.
Very recently, a journalist friend of mine, whom I greatly respect, asked if I thought that good lawyering sometimes justifies the use of repellant tactics such as the wholesale attack on the character of an opposing party, or filing dozens of trivial motions to chip away at the other side of the case. My answer is an emphatic "No." In truth, I think such conduct inevitably is bad lawyering.
The pride one feels in the legal profession and the sense of satisfaction that can be obtained from practicing it will be demonstrated in the lives of the people you will represent, those you will oppose, those you teach and those with whom you work. The enduring conditions of those caught in the extremities of experience will compel your attention for the rest of your lives. That is precisely what you have been trained to do: To guide people away from or through the exceptional circumstances of life.
You will seldom see people at their best. You will frequently witness injustice and you will be expected to take action against it. The one thing you will not be able to do and still survive is be indifferent to it. To succeed in this profession and revel in it, you need to feel a fire in your belly and, equally important, you need to expand and nurture your imagination and intuitive talents.
One of the best trial lawyers I’ve ever known attributes his successes in the courtroom to imagining that he represents the opposing party. He examines the law and the facts of every claim and defense from the viewpoint of those whom he will oppose. He says,
By doing this, I find it is no longer desirable or even possible to treat the
opposition cruelly or to humiliate them. I tell my clients that we must enter into the hearts and minds of our adversaries to understand their views, their beliefs and their language. When we do this, we will not necessarily believe that we are wrong, but we will respect the differences, and the judge and the jury will come to know that we are speaking the truth and seeking justice.
Employing logic to analyze conflicting data and principles is essential to the lawyer’s life, but it is not the entirety of that life; it is a beginning, a commencement. It is the acquired skill that enables one to clarify the initial ambiguities of a problem. In order truly to think like a lawyer, what must follow is the development of an aesthetic perception that enables one to grasp the heft and feel of how others will appreciate the same facts and principles.
The very first step in this process is to recognize the suffering of those who are subjected to injustice. To do so, you must exercise your imagination. You must sense why you have chosen to serve justice and how best you can perform that service. To be a lawyer, you must dare to be creative.
Imagine injustice. Consider yourself not as one who has deservedly achieved the status of a professional, but rather someone who does a task well, even excellently, and is denied the recognition he deserves. Imagine that you are wronged and nobody cares. Injustice comes to the fore whenever the illusion of equality is shattered, whenever rules are applied differently for one than for another, whenever false statements are made with utter disregard for the truth and whenever intent is bereft of compassion.
Justice is a refuge, a safe harbor from the tempest of the human condition where deprivation, in the fullest sense of that word -- the denial of individuality -- is not tolerated. Justice is the condition in which the unchartered value of each human being is recognized. It is, I think, the act of providing one with his or her due -- and no more.
Over the arc of your career you will have to rise above the demands, the imperatives of our legal system-not just for your client, though that is a key obligation, not just for yourself, though that is essential for your health and well-being, but also for the broad complex of interests involved in your experience. You must strive, sometimes against all odds, to do what is right in a larger landscape than the adversary system requires or expects.
The legal profession exists, not to perform value-free computations, but to provide order in a living society where otherwise there is chaos, to afford dignity where otherwise there is degradation, and to express our highest aspirations where otherwise there is despair. To be a lawyer, and to think like a lawyer, is to recognize that the struggle to defeat injustice never ends; that each of us is a part of a time-honored tradition; and that law, in its ultimate sense, is not a compilation of concepts, but a creative activity which calls upon the very best we have to offer.
We lawyers are not the only people responsible for maintaining a free and just society, but such a society cannot exist without our constant commitment to do justice in every circumstance. That is the cause with which we are charged. It is why the profession joins in your celebration of this day; it is why we welcome you and wish each of you a splendid and joyous career.