Monday, July 18, 2016

Monday at the Bar: Trouble in the legal profession hits the CST.

 Public domainDepiction of trial by combat, with combatants properly aligned to give each smiling combatant the advantage of the sun, unbekannter mittelalterlicher Künstler - Dresdener Bilderhandschrift des Sachselspiegels, hrsg. v. Karl v. Amira, Leipzig 1902, Neudruck hrsg. v. Heinrich Lück, Graz 2002.  From Wikipedia Commons.  This work is in the public domain in its country of origin and other countries and areas where the copyright term is the author's life plus 70 years or less.

I've written more than once about the reports of distress amongst legal practitioners here on this site.  Most recently I did that in an item on Alcohol and the Law.  In some of those I've been a little skeptical about what I was reading, but I've reached the point where the evidence seems sufficiently overwhelming (although there are a few doubters) that I'll concede its correct.

Indeed recently I've had a couple of odd instances in which this topic has come up in one fashion or another.  For one, I was sitting waiting for a deposition to commence when an out of state lawyer, a super friendly fellow, started talking about it (the topic came sort of out of the blue and I really don't know how it came up).  He went on a long litany of the statistics, it was like reading a journal article on it, about the topic, going into addictions lawyers have to alcohol, drugs, women, etc. and how destructive it was.  And this from opposing counsel.  I hard knew what to make of it, frankly. 

Anyhow, this past weekend Casper Star Tribune columnist Joan Barron, who is a CST columnist whom I really like, had an article on the Wyoming state program.  I was truly surprised, but I'll give credit to her and to the state bar for trying to publicize what they're doing.  Her article had this interesting set of observations in it:
Some people regards lawyers as rich fat cats in suits who don’t deserve sympathy. Some lawyers are well-off, but the average salary isn’t that stunning.
And they are the professionals people turn to when they are in trouble. They also are the men and women assigned to defend indigents, who have no other options.
Think Atticus Finch of “To Kill a Mockingbird,” admittedly a romantic and idealist portrait of a small-town lawyer. Or the more realistic case of the late Gov. Ed Herschler of Kemmerer, who neglected his solo practice to appeal successfully to the U.S Supreme Court the death sentence of a transient he had been assigned to defend, a man he disliked.
She goes on to detail that there were apparently four lawyer suicides in recent years, of which only one was openly that and the others disguised.  I know the guy who had the open one, and indeed, I was in a hearing against him the day prior in which he asked for an extension in his case, which I agreed to.  I've felt horrible about it ever since as it makes me feel like I opened the door up a bit as it gave that case a window for a replacement lawyer it wouldn't have otherwise.

Anyhow,  the article details the new Wyoming State Bar program, which apparently all state bars or at least nearly all of them now have.  It's good that the state bar has one, but I have to wonder how effective these things are.

That's for a variety of reasons, but I'll be frankly that I have come to view a lot of psychological problems as a combination of environmental and organic.  I'll fully conceded that our DNA's in our fallen state set us up for a lot of problems.  But I also think we've created a world which we're not really very well suited to live in, and that includes, I fear, our legal system.  We have an adversarial system, which is not only well known, but celebrated in the law.  The thesis is that the courtroom substitution for trial by combat of old serves to bring out the truth to the jury.  Maybe it does, although I truly have my doubts about that, but what it also does is to put a premium on combat, and all combat takes it toll on the combatants.

 Wounded British soldiers, World War One.  Note the stare of the man on the bottom left of photo.

I suspect that's in part what happens to some of the lawyers who end up in needing the help referenced above.  Years of judicial combat, financial strains, and simply the everyday pleas for help get to them.  I've known a few that seem to have run into such trouble and did indeed take refuge in the wrong places, booze, women, or whatever.  And I've also known a few who seemed to have developed very harsh personalities.

I won't claim to know what the solution to these things is.  Some people end up seeking help in medicine, and they likely should.  But this all takes me back to something I've mused about here before.  I have to wonder about our having built a world that we don't seem fit to live in, and about also creating, as part of that world, a legal system that seems to be going after the well being of some of those employed in it.  Why are we doing that?

 New York lawyers, 1916.

Addressing the legal system alone, what we should note is that technology and advances in communication, while the law believes that it has improved it, hasn't improved the life of lawyers one bit but, if anything, its made it infinitely worse.  If we go back to the year we've been focusing on so much here recently, 1916, most lawyers would have been either solo practitioners or small firm lawyers practicing locally and relying on the mail for communication. Some would have had phones by 1916, but many would not have. Local affairs would principally have been the ones they were involved with, although as we know from very old entries here even in the early 20th Century some Wyoming trial lawyers had state wide practices.  But in those state wide practices they still had to rely on the mail and they traveled principally by train, and occasionally by horse.  

That's quite a bit different from what I see now all the time, which is lawyers flying across country to attend one thing, and checking on others from their Iphone while they are there.  

Technology can't be put back in the box.  But things can be done.  And one of those things is to recognize that law, like politics, is all local. And that would mean discouraging or even preventing the erasure of the the state borders in the practice of law.  But the trend is going the other way.  Our Supreme Court has been complicit in flooding the state courts with out of state lawyers who are sometimes hyper aggressive while also not understanding the local rules and customs.  It's dragging the practice down a level or two and not aiding the practice here a bit.  A partial fix to this problem would be to restore the old rules that you can only practice where you have actually passed a real state bar, not something like the UBE, and that you must actually have some business connection with the state where you are practicing.

Additionally, maybe something should be done to take a page out  of European systems that are more inquiry based than ours.  If litigation is a search for the truth, maybe it ought to actually be a search for the truth.

Finally, maybe something has to be done about he process of legal education.  Indeed, this gets us to the topic of education in general, but again and again I'm struck by how we have a system that's largely designed to recruit the ignorant and burden them with expenses while being educated by individuals who know very little about actual practice. That has to mean that there are people recruited who are not suited for the endeavor.  Once a person is out of law school they're qualified to do exactly one thing, and one thing only, practice law.  Maybe they ought to have a taste of that practice simply as a qualifier to even enter law school, before they do.

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