I tried. Sort of.
On the summer after I graduated from the University of Toronto, I signed up to attend a summer theater course in acting at UCLA. In order to have a school to go to in September – as I’d had since Nursery School – the day before I left for UCLA, I filled out the paperwork to go to the University of Toronto Law School.
It was easy. I had an “A” average, my transcripts were across the street at the university. I just had to sign at the bottom of some page, and the office staff would take it from there. My position for the fall class of First Year law was quickly confirmed.
Everything about me said “Law School” except my brain, my temperament, my character, my interests, my maturity level and my personal history. What the heck was I thinking? Answer: Nothing.
Here’s the main problem with my being a lawyer.
I have never beaten anyone in an argument.
You’d consider that a liability, wouldn’t you? Would you hire a lawyer, whose business card had a motto printed on it that said,
“I’ve Never Won An Argument”?
I signed up for law school for two reasons. I needed somewhere to go in September, and my older brother had gone to law school. Academically, I had always done better than my brother, so I figured if he could do it, so could I. My calculations ignored one glaring fact.
My brother beat me in every argument we ever had.
I mentioned that to him once. We were walking down by the beach during one of his visits, and in the course of our conversation, I said,
“You won every argument we ever had.”
To which my brother replied:
“I thought you did.”
My brother’s response triggered surprise, and then, relief. Wow. All those arguments I thought I’d lost, I’d actually won? This revelation changed my whole view of things.
Whaddaya know? Maybe I’m more persuasive than I think.
My relief quickly ended when I realized that my brother told me that I’d won every argument, not because it was true, but as a strategy, and by so doing,
my brother had won another argument.
That’s what I knew I’d be up against as a lawyer. People who were quicker than me. At least in arguments.
I had the time of my life at UCLA. From a highly regarded first-night audition, I was cast in three of the four plays they were putting on. People liked me, and they appreciated my acting. When the program ended, many of them were angry that I wasn’t sticking around.
I couldn’t, of course.
I had to go to law school.
The moment I walked into my first law class, I knew I was in Grownupland. Everyone else was wearing a suit. They already looked like lawyers. When the professors spoke, they actually seemed to understand what they were saying. Either that or they faked it, another talent you needed as a lawyer that I lacked. I had a big question mark on my face.
I immediately started to panic. With the help of a social worker I was referred to, I came to understand that I didn’t have to be there. I hadn’t realized that before. I thought you always had to be somewhere – in school, at work, on vacation, sick in bed – when the truth was, you didn’t.
It was okay to be nowhere for a while. Meaning, nowhere specific. Nowhere that pointed to some “future”. Nowhere that reflected any kind of plan. So that’s what I did. I left law school after five weeks and entered
I stayed nowhere for three years, till when I started writing my weekly column for a Toronto newspaper. You could argue I was nowhere for eight years – until I was called down to work in California. However you count it, after leaving law school, I was nowhere a pretty long time.
I have to make a jump here. Not in time, but in country. I know nothing about the practice of law in Canada. I have no direct experience of the practice of law in the United States either, but I have impressions. From courtroom movies and TV shows, from an exhaustive viewing of the “O.J.” trial, from my extension classes on the Supreme Court, and from my reading. Four things. Pretty impressive.
As they say in show business when they mean something a lot more negative, in regard to the way law is practiced in the United States, I’m not a fan.
Like many of our institutions, the American legal system is built on the English system. But, as we did with the language, we “American” it up, refracting the fundamentals of English law and legal procedure through the prism of American culture.
What’s the result? Respectful and responsible adversarialism is Americanized into what I, as a lover of cowboy movies, call
“The Gunfighter Mentality.”
I’ll explain that with a story.
I’m watching this PBS show, The Advocates, a televised debate, where opposing sides argue their positions and challenge the arguments of their opponents. I love The Advocates, and I invite Dr. M. to sit down and watch it with me. Dr. M. says no. But it’s great, I explain. You get to witness an intelligent, reasoned presentation of both sides’ points of view. Dr. M. responds with an explanation of her own.
“In my family, when it comes to debates, we like one side to win, and the other side to die.”
That’s “Gunfighter Mentality” – one winner, and a guy lying face down in the dust.
“Gunfighter Mentality” is how the American legal system, through the continual pushing of the boundaries, has come to work. Especially for criminal lawyers – I’ll focus on them, though I suspect every encounter between attorneys is viscerally adversarial.
It doesn’t have to work that way. There are legal systems in the world – and, if the show JAG was accurate, in our own military – where the attorneys are assigned to the trials, sometimes to prosecute, and sometimes to defend. As a result of their having personally chosen neither the case nor the side, these lawyers’ reputations rest entirely on the quality of their representation, not on whether or not they win or lose.
In the American system generally, however, the primary goal – like in everywhere else in our culture – take a look at our movies – is winning. Nobody likes being called, or feeling like, a lowly, lowly loser.
What, then, will participants in the “whatever it takes” legal adversarial process not do to escape that devastatingly humiliating tag?
My brother once quoted me some wise person’s definition of a jury:
“Twelve people who decide which side has the better lawyer.”
Not the better case – the better lawyer. That concept seems twisted to me. What does being skillful at arguing have to do with fairness, justice, or the single-minded pursuit of the truth? It could just as easily be
“Twelve people who decide which lawyer has the better haircut.”
We’re talking about two completely separate issues – trying to discover what really happened in a situation and “Which lawyer is the better dancer.” Or pancake flipper, or rope twirler. The truth is what you’re looking for; personal talents are irrelevant. And yet, invariably, “the better lawyer” will determine the outcome of the trial.
I know, or at least I’ve heard, that the “O.J.” trial was abominably managed by the judge.
But the nonsense the defence team was able to get away with, like, for example, concocting an alternate scenario to explain what happened without ever having to produce witnesses or evidence to back it up? Was that just a judge’s mistake? Or is that, procedurally, how it’s allowed to be? If it is – P.U.!
The system is aggressively adversarial, defense lawyers explain, and it has to be for justice to have its best chance of prevailing. If I were a teacher grading an essay on the subject, beside this assertion, I’d be scrawling in red pen a great big
Whether it’s tactics or their choice of clients, lawyers, apparently, bear no personal responsibility. I remember when Daniel Petrocelli won the “O.J.” civil trial. The man was a hero. A champion. He could have been elected governor. Maybe president. The next time I hear his name, he’s defending Kenneth Lay in the Enron debacle.
It took my breath away. But it shouldn’t have. He’s a lawyer. That’s simply the way it works.
I get the concept. Every person – the worst person imaginable – is entitled to a zealous and vigorous defense. That’s true, Mr. Defense Attorney. That is the rule. But there’s one thing you leave out in that statement.
It doesn’t have to be you.
And, because of my choices, it’s never going to be me.