A few weeks ago, Dan Rottenberg, editor of The Broad Street Review, to which I frequently congtribute, posted an article comparing the legal profession unfavorably to the medical profession. (You may read it here: http://www.broadstreetreview.com/index.php/main/article/doctors_vs_lawye... I wrote an article in response, which he rejected as containing "too much rhetoric and... not enough original insight." He offered to print what-he-considered its "salient points" to be, but I declined, preferring to run it in its entirety here. So...
A Lawyer Strikes Back
As an attorney, my first reaction to Dan Rottenberg’s “Doctors vs. lawyers” (BSR 05.07.2013) was to puff myself up with defensive professional pride and blurt out “Brown v. Topeka Board of Education, Roe v. Wade, and One-man-one-vote!” But then the tendrils of Plessy v. Ferguson, Citizens United, and – Good Lord! – Bush v. Gore seized me, and I realized we had enough blood on our hands to give the matter further thought.
The conclusions I came to cast rain on both our parades. Few balloons for me. Little confetti to cheer Dan on.
Dan faults the legal system for hanging onto an outmoded “adversarial model as the best way to resolve differences,” rather than developing less costly, less time consuming, less embittering processes. He argues that “many ostensibly financial conflicts” would be better handled by therapists than by lawyers. And he proposes that criminals – even violent ones – be treated with psychotherapy rather than subjected to “expensive, time-consuming incarceration.”
But Dan does not reveal how he would select the financial disputants he would order into counseling. He does not say how he would resolve the remaining civil cases on the docket or what he would do about any but the “low level” criminal defendants he would refer to social service programs. These holes may reflect a recognition of how complex and difficult constructing a system of justice is. But since Dan’s opposition to the adversarial process is unqualified and since he follows his castigation of the Central Park Five’s prosecutors with praise for “(p)rivate mediation services,” he seems to have something like that in mind for even those accused of the most heinous or financially ruinous acts.
Setting aside the impediments imposed by the Sixth and Seventh Amendments’ guarantees of an individual’s right to a jury trial – as well as most attorneys’ seasoned belief that such trials are the best way to protect their clients’ rights, I doubt Dan’s preference for methods for dispute resolutions that look better on a days-and-dollars balance sheet is likely to gain much traction. Something about trial lawyers, whether Clarence Darrow or Jimmy Stewart, Gerry Spence or Gregory Peck, supports a pillar of our national self-image. They bolster our sub-conscious, along with vibrations struck by Alan Ladd’s Shane gunning down Jack Palance’s Wilson, Gary Cooper’s Will Kane ridding the world of Frank Miller, Philip Marlowe’s sweeping detritus from Raymond Chandler’s mean streets, and other manifestations of the Lone Hero that a mediator, no matter how persuasive, is unlikely to provide.
F. Lee Baily, who was both, likened being a trial lawyer to being a jet fighter pilot. Both require mano a mano combat from which, we presume, the best man will emerge victorious, with truth and righteousness in tow. Expecting our citizenry to give up the adrenaline-rush generated by great litigators for the silky smoothness of great case settlers seems to me like asking us to swap Monday Night football for Parchese and abandon chick-fight flicks for Proust.
Regardless of whether the mechanism to render judgment is adversarial or not, I am equally skeptical of our society’s – and not just our attorneys – openness to the changes Dan calls for in its response to lawbreakers. Law is not like medicine, where peer-reviewed studies guide us with assurance toward what gets stuck in or cut out of whom. Deep-seated, vestigial emotions play a greater part. I suspect a majority of the populace, with inclinations left over from the emotionally gratifying eye-for-an-eye days of yore, would be marching, pitchforks in hand, toward any pushers of a Model Penal Code seeking to soften the hard time of those convicted of major crimes by laying them upon a couch, rather than the slammer’s steel slabs.
Just speaking for myself, I’ve known numerous people with problems less troubling than homicidal urges, whose experiences with numerous expensive and time-consuming therapies, left their behavior less modified than I would like in those with whom I might be strolling down a dark alley. Plus, I can’t forget reactions to what Caleb Foote, my first year Criminal Law professor, called “The One Grandmother Rule.” He posited a fellow who, in the grip of an impossible-to-deter impulse had bludgeoned to death his granny and who, all evidence indicated, would never repeat such behavior again. Professor Foote’s proposition that, under such circumstances, “Everyone be allowed one grandmother” and that the gent be permitted to walk found little support among my classmates. There is something within us – a sense of right, a thirst for – okay, admit it, revenge – that demands that perps feel pain – that they get away with nothing!
And I come to these conclusions with unimpeachable, liberal blood-lines. My parents met at a fund-raiser for the Loyalists in the Spanish Civil War. My father, while a Common Pleas Court judge, was known to Philadelphia’s press as “Freedom Herb Levin” for his propensity for placing felons on probation. I have long viewed our criminal justice system with a critical eye. I think that the adversarial system’s glorification of “winning” tends to encourage dirty tricks, the toleration of perjured testimony, and “experts” as pliable as any lady of the night. I agree with Darrow that “Those men who own the wealth make the laws to protect (it).” I favor fewer people in jail and fewer laws to put them there. (On the other hand, I agree with my friend Budd Shenkin, a public policy-oriented physician, that “The higher the income, the lengthier should be the sentence.” And I’d be fine treating asbestos manufacturers and the owners of exploding fertilizer factories as serial killers.)
I would also agree with Dan that our penitentiaries are a soul-rotting stain upon our civilization. I am all for making education, vocational training, and, yes, therapy available within them. But for the realization of the changes that he champions, enlightenment would have to embrace far more of us than it does. Compassion must fill many more of our hearts. All of us – not just those saddled with J.D.s – must become better people.
And the degree of my faith in our ability to accomplish this before we burn up our planet leaves me about as uneasy as Mitt Romney in a mosh pit.
Causes Bob Levin Supports
Comic Book Legal Defense Fund, ACLU, PEN, Berkeley Emergency Food & Housing Project.