You have wondered, no doubt, as nearly everyone wonders from time to time, where all the lawyers come from. Was there something you missed--or only skimmed--in sophomore biology? Or health class? Or gym? They seem to be everywhere you look, and yet you never see them reproducing.
I ought to be able to help with this. I am, after all, a species of lawyer myself. But explaining where I came from--that is, how I came to be a lawyer--has never been easy. I certainly didn't charge into the profession face first, I can tell you that. It was more like . . . falling. I do remember having an idea that I wanted to practice law. It wasn't a very clear idea. And it wasn't a very good idea. In fact, it was probably the worst idea I ever had.
But it was an idea.
According to the American Bar Association, in the fall of 1990 the nation's 175 ABA-approved law schools welcomed the largest entering class ever (44,104) to the largest total law school enrollment (132,433) in American history. It would be interesting to see these raw figures broken down into motivational categories. But nobody, as far as I know, has ever made any effort to do that--to distinguish between those for whom law school is the triumphant end of a long march, and those who, like me, simply happened to wander in. In every law school class there are accidents like me; you can tell by the glum, dazed, and bewildered looks sprinkled here and there among the go-getter smiles. But nobody counts them up. People in legal education confine themselves to counting warm bodies--"degree candidates"--and they generally come up with 40,000 new ones every fall. All but a handful of these get cranked out at the other end, and that, at least in the immediate sense, is where all the lawyers come from: more than 770,000 of them now. I work that out, by the way, to be 768 miles of lawyers, laid end to end, or 47,000 tons of lawyers.
And I don't need to tell you that they're expensive, by the ton. Lawyers not only don't produce anything nice or pretty or useful--they get in the way of those who do. Picture a single 47,000-ton lawyer, and ask yourself: where will he (80 percent are male) sleep? Or more to the point, what will he eat? At the very least, $80 billion a year in the form of direct litigation costs and higher insurance premiums for private individuals and businesses. In terms of lost productivity, who knows? According to one slightly hysterical estimate, our 47,000-ton lawyer is costing us half a trillion dollars every year--or something like 10 percent of the gross national product.
That's a little steep, you may be saying, but so long as our 47,000-ton lawyer is happy. So long as our 47,000-ton lawyer is having fun. But is he?
An Arizona study followed 320 people through law school and beyond and found that 18 percent qualified as clinically depressed after a year of law practice. That's three times the national average.
One out of every three lawyers responding to a recent Maryland survey expressed doubts about staying in the profession. And no wonder: they worked an average of 60 to 70 hours a week.
An extensive survey conducted by the ABA in 1990 found "an astonishing rise" in drinking among lawyers nationwide: 13 percent of those surveyed--20 percent of the women--admitted having six or more drinks a day.
The same ABA survey found that only 33 percent of all lawyers were "very satisfied" with their work. This is a key indicator that has fallen dramatically in recent years. In an article reporting the trend, the New York Times suggested that it might be due less to objective changes in lawyers' status or working conditions than to "the coming of age of a younger generation that entered the profession either with unrealistic expectations or, in many cases, almost by accident."
That would be me. And evidently I'm not alone. Evidently, even as I write, vast numbers of (1) unrealistic, accident-prone young people are drifting into (2) a crowded and increasingly despised profession that doesn't want or need them, thereby (3) clogging up the economy and becoming personally (4) unhappy and (5) drunk.
And what are we doing about it?
Our instinct--or anyway our custom--is to rely on market forces to discourage entry into overcrowded and unproductive fields. But there are some problems with the laissez-faire approach, at least in this context. The most obvious is that it only works, if at all, when conditions happen to be bad for lawyers--that is, when there are too many lawyers even from the lawyers' point of view. What about when there are too many from the point of view of everyone else? In societies that have too many priests, or too many bureaucrats, it isn't usually the priests or the bureaucrats that do the complaining. Sheep may be justified in believing that there are too many wolves, even when all the local wolves are flourishing. If for market mechanisms to work we have to wait until there are too many lawyers in an objective, market-based sense--so many that they can't all support themselves as lawyers--that is waiting too long.
Besides, it's questionable whether market discipline really works on lawyers in quite the same way it does on other economic actors. Remember the old joke about the little town that was too small to support one lawyer, but plenty big enough for two? Like many a simple paradox, this one suggests a deeper and more disturbing truth: the more lawyers there are, the merrier. The extent to which lawyers thrive does not necessarily depend on anything external to themselves. They are not impervious to ordinary economic forces, of course. But somehow the more fiercely they "compete," the more they prosper collectively; and the more they prosper, the more control they acquire over the rules that govern their prosperity. Like the sci-fi terraformers, lawyers can make their own atmosphere, wherever they land. If there are enough of them.
But are we really this helpless? With matters so grossly out of balance that 70 percent of the world's lawyers are entrenched right here in the USA, can we seriously expect a market correction? Are we reduced, in the meantime, to lawyer jokes and extermination fantasies (often the same thing)? Or is there something a little more straightforward and sensible we could try?
I think there is: lawyer prevention. Prophylaxis. Not all lawyers, after all, are irresistibly fated to be lawyers. Many--who knows how many?--are really the unfortunate products of caprice, ignorance, and a very weak form of inertia. A little push here or there: that's the kind of thing that may land you in the law. But once you have landed, it's a mighty labor to crawl back out.
Nowadays I don't like to think much about how I ended up becoming a lawyer: the cloudy, mistaken notions I had, the silly fantasies I indulged, the contradictions I avoided acknowledging, the obvious questions I never bothered to ask. It's all too embarrassing. But I will say this for myself: my mistakes were typical. For that reason alone, it may be worth looking into how I managed to be so dumb, and the way I was forced to pay for it.
Such, Such Were the Joys . . .
When I was in college in the mid and late 70s, I studied dead English poets and gave very little thought to the world at large. But a shrewd observer could easily have seen that, whether I knew it or not, I was "prelaw." My school had no such thing as a formal prelaw major, but like all schools it definitely had a prelaw type. Contrary to what you might expect, that type is not notably hardheaded, or worldly, or even practical. Statistically, undergraduates who concentrate in business, accounting, finance, and so on are not very likely to apply to law school. Fewer than 20 percent of all law school applicants majored in anything in college that would have led, by itself, to any obvious job. Law school applicants, overwhelmingly, are humanities-and-social-sciences types. They are bright, certainly, and often glib. They are well informed--within their limits. They perform well on written tests. But they don't know how to do anything.
In an earlier day, as a promising youngster who didn't promise anything in particular, I suppose I might have ended up a clergyman. That's where I imagine people like me were "put." Nowadays, of course, we are put in universities and must contrive ways to stay there as long as we can. We may complain, we may even drop out from time to time, but deep down we know that for us there is no place in the world so congenial as a school. I dropped out of school, in one way or another, no fewer than four times, and always went back. Although it would have humiliated me to admit it at the time, I think now that what I really had in mind was prolonging my school days!
Why should this admission be humiliating? Because only passive, useless, dreamy, impractical, unrealistic people need to linger in school. The fact that I was all these things was so unmistakable that I couldn't come anywhere near admitting it. I had internalized the world's scorn for the timid. But I did not know quite how to be bold.
If you are unable to face the fact that you are a coward, you are likely to go beat somebody up. But it isn't likely to be anybody very big. I think a version of this dynamic occurs among the prelaw types I am trying to describe. Precisely because they are what they are--bookish, diffident, unworldly, shrinking--they feel the need to "engage the world," to be "realistic," all the more acutely. But they are completely at a loss outside the familiar structure of school. If only they could go to school to learn how to be--and simultaneously to prove that they are--realistic!
I'm sure you see where this is heading. Perhaps you don't buy any of it. Certainly what I am saying applies to no more than a subset of those who end up in law school. But the fact remains that for many one of the strongest attractions of law school is that it is, after all, more school. It's a way of avoiding the leap into "real life," which is an abyss. To those who have left school and drifted a while, it's a return to dry land, to a sense of solid purpose. Many ex- (or "recovering") students feel funny, dizzy, aimless outside of school. They are like marchers whom the parade, taking an abrupt left, has scattered into the crowd. There they find things strangely discontinuous, disorderly. Nobody is in step; term no longer follows term; nothing is graded; there is no final, no goal, no progress. There is no point.
Law school is not only a refuge from the incoherent world, but often a relaxed and cozy one. There are few places where verbally gifted young people feel more complacently at home. Law school's fierce reputation as a kind of intellectual boot camp is largely based on conditions and practices that were abolished long ago. At one time law schools had no stringent admissions standards, but vigorously "weeded out" the academically infirm. These days, elaborate care is taken in selecting applicants in the first place, and no further weeding is thought to be necessary. Which is to say, once you're in law school, you're in. Hardly anybody flunks out. Hardly anybody is broken in spirit, or driven to suicide, or made to endure Paper Chase-style torments. I actually went to the Paper Chase law school, so I ought to know. Like any student anywhere, I had to put up with a fair amount of boredom, some late-night reading, regularly scheduled periods of intense but manageable anxiety, occasional pressing deadlines, a few professors (and more than a few classmates) who were jerks. But it beat working.
And it wasn't like I was going for an advanced degree in, say, paleontology, or comparative religions. Nobody ever accused me of being impractical or late-adolescent. Nobody ever said, "That's interesting. Do you plan to teach, or . . . ?" I got to keep funny hours and read in cafes and wear the same jeans every day, just like the other graduate students. But my parents didn't grumble, and nobody called me slacker or bum.
And the classes could be very interesting. It was, perhaps, ominous that they became less interesting with each term, as they passed from the general to the specific. But they never got that specific. A single class in property might contain students who would eventually practice in 50 different jurisdictions, with 50 different sets of property laws, all of which were changing all the time. Of necessity, then, my property professor taught not the property law of any particular place or time but the broad concepts and traditions that stood behind those laws. It was understood that we would learn the laws of particular jurisdictions once we got there. I think I got a B in property. Which showed not that I knew how to do a real estate closing, but that I knew how it was done in the Middle Ages.
Moreover, I was learning jargon, and occult formulas, and smooth evasions. I was learning Latin. I may not have known how to handle ordinary legal problems, but I was perfectly capable, within a very short time, of mystifying ordinary people. And I got respect! I was no longer a skinny kid; I was now a skinny initiate into a kind of secular priesthood, with all the power and prestige of my order behind me. In my case, the effect was intensified by the almost magical cachet of my school's name. I remember, on my first vacation back home, my father telling a shoe salesman all about me. It was excruciating! It was great!
Incidentally, I don't remember being at all disturbed by the obvious fact that my new order was generally loathed by the common people. For one thing, I considered myself exempted, on account of my good intentions. (I was going to be a People's Lawyer. See below. I mean infra.) But even if I hadn't, I think I might have felt a sneaking pride in being the object of all that hatred and envy. Something like the pride of the outcast, the predator. Lawyers are special, set apart--execrated, yes, but feared also. Becoming a lawyer, from this point of view, is like joining a coven of witches. You may get no real powers, but the terror of the ignorant laity is itself a source of power.
Heady stuff for a youngster! Practically the only drawback was that the whole thing cost money. But then it was mostly borrowed money, which isn't quite the same as real money. Being the sort of person I was, I would never have dreamed of ordering imported beer in a bar, or buying an overcoat new, but I thought nothing--literally--of signing loan agreements for thousands of dollars a pop. And when I received my small stipend every term, the amount of my loan that exceeded what I owed for tuition, I actually had the illusion that they were paying me!
Although I was unusually stupid about money matters, I think my emotional appreciation of the debt I was incurring was about average for someone my age. People who have had no experience of adult working life cannot be expected to understand what this kind of debt means. And frankly, nobody tries very hard to get the point across. I don't remember receiving any human counseling at all from the law school loan office until the end of my last term, when all of the damage had already been done and the subject was simply how much I would have to pay them each month. The forms they gave me to sign all along contained fine-print "disclosures," of course, about interest rates and so on, but nothing in plain English, nothing that would have brought home the seriousness, the irrevocability of the commitments I was making.
I am still paying those people off, and still grumbling about it, but I have less to grumble about than those who came after me. My legal education was, comparatively speaking, a bargain. I can't say now exactly what it cost me in money, but I don't think it could have been more than $35,000. According to a study based on more recent (1987-'88) figures, if you want to go to a law school with any swank nowadays, three years of tuition, fees, and living expenses are going to run you more than $60,000. To put it in more practical terms, the monthly payments on my law school debt are less than $300. I have a friend of a friend who graduated from the same law school a year ago, and he's writing his checks for $900 a month.
I know what the reader is thinking: a law degree is an investment. That, in fact, is what responsible adults have always told law students and would-be law students, all along the way. A law degree costs something in money, but it pays off in money too. And, of course, professional status.
Did You Say Money? Did You Say Status?
When children decide that they want to be fire fighters, they're not thinking about the camaraderie or the pension benefits or the public weal; they're thinking about those great hats. That's because, being inexperienced, they tend to judge a career on the basis of its most superficial rewards. The reason we don't eventually end up with a huge surplus of fire fighters is that, as children get older, they come to care less and less about hats--and more and more about money and status. Which leads them, bareheaded, to the gates of law school.
I can't claim that the promise of money and status is a false one. Personally, I never made much money as a lawyer, and the status gave me the creeps. But I can't pretend to be typical in this respect. Everybody knows there's money to be made in law. And even the most determined lawyer basher can't deny that law is, after all, one of "the professions." Still, if money and elevated status are so great--if they are not, at least, mixed blessings--why are so many lawyers so demonstrably unhappy? Why are they deserting their "profession" in unprecedented numbers, often with nothing but the three-piece suits on their backs? Why have bar associations in 44 states had to set up counseling and hot line programs to accommodate the depression, alcoholism, and drug dependency problems of those who stay behind?
Let's look at status first. A good part of status is simply reflected wealth--that is, the shine that money gives to people and social groups that have it. The question is whether lawyers still have any prestige that is distinct from this. The answer is yes and no.
Does anybody actually look up to lawyers, as a group? Yes. Anybody who is familiar with them, whose opinion of them could be said to be informed? No. Do the quaint old traditions associated with the public practice of law--such as insisting that the most elaborate punctilio be observed in courtrooms, that lawyers refer to one another as "learned counsel," that proverbs be quoted in dead languages, that everyone treat the judge with slavish deference, that the commoners be separated by a kind of communion rail, that none but the initiated be allowed to "approach the bench," and so on--suggest a kind of aristocracy of the robe? Yes. Can anybody in the late 20th century take this sort of prancing seriously? No. Is the lawyer sometimes a glamorous figure in our collective daydreams, like the private detective and the cowboy and the international spy? Yes. Can a real lawyer--one whose life is no more like Judd for the Defense than anybody else's--get any satisfaction out of this? No. Not unless he or she is uncommonly silly or vain.
I'm not saying there's no difference, status-wise, between a successful lawyer and a successful stockbroker. I don't often hear of "eminent" stockbrokers. But I don't hear bitter or bloodthirsty jokes about stockbrokers either. Becoming a lawyer may give you a more conspicuous position in society, but it makes you a conspicuous target as well. If you soak up and internalize even a little of the prevailing ill feeling toward lawyers, it will tend to poison whatever status you might otherwise have enjoyed. I remember seeing a cartoon once, a courtroom scene with a lawyer questioning a witness while a judge looks on, and all three of them are thinking the same thought: God, I hate lawyers. The part of this that is really funny is that the lawyer is thinking it. But why wouldn't he, if everybody else does?
This leads naturally to what has always seemed to me to be the real trouble with lawyerly status: the way it feels when you're wearing it. Personally, I could never shake the feeling that it didn't fit me, that it wasn't mine. I couldn't wait to get it off. I don't think I was alone in this. It's common for young lawyers to feel privately that they're not "real" lawyers, that they don't deserve whatever genuine, untainted, unbegrudged prestige there is left in having "Esquire" written after their names. After all, having spent nearly all their time in school studying the law's theoretical and historical underpinnings, they emerge knowing next to nothing about legal nuts and bolts. They may "think like lawyers," as the saying goes, but like practically knowledge-free lawyers. In order to pass the mile-wide/inch-deep bar exam, they are forced to cram, making only the most superficial acquaintance with the laws of the jurisdiction in which they'll be practicing. Still, if they pass, they're lawyers, period. There are no degrees of lawyerhood. In theory, any lawyer can be entrusted with any legal problem. Starting immediately.
Marks of status are no consolation to a person in this position. I remember lapping that kind of thing up when I was in school, but it began to make me queasy almost as soon as I was out, and before long I'd lost my appetite altogether. When people called me "barrister" and "counselor" and "attorney at law," I often felt an impulse to back away, even hide. Because I wasn't really. I had to play along--how could I deny that I was a lawyer?--but the sense of my inadequacy, of the falsehood of my position, never left me.
I had understanding bosses. Especially in the small, progressive firm that I joined straight out of law school, the partners recognized that I was a little on the timid side, and tried to avoid pushing me. In areas where I was unsure of myself, they gave me as much guidance as they could. But they really didn't think I needed any. Time and again they told me, "Relax. Be yourself. You know this stuff as well as the other guy." And I gradually came to see that they were telling the truth. My own barely concealed incompetence was really just as good as anybody else's. It was possible--in fact it was essential--to "learn by doing" while pretending to know already.
It's not this way in other fields--nobody wants a young medical intern to bluff. Bluffing--pretending to be certain when you're not, convincing others when you're only half-convinced yourself, screening weakness and ignorance behind eloquence and double-talk--really lies close to the heart of law practice.
What my bosses were trying to tell me was, "You are not an impostor. You are a real lawyer. Now get out there and fake it."
OK, But What About the Money?
Average income figures for lawyers are hard to come by and just about meaningless. Lawyers' incomes range all over the place--depending on age, philosophical inclination, experience, background, location, specialty, luck, and practically every other variable you can think of. As I said before, the law jobs I had didn't pay that much. In fact, I knew plenty of seasoned attorneys who after taking care of the office bills made nothing at all for long periods. Meanwhile, though, in the suites across town they were raking it in.
If you are drawn to law by its glitter, you probably identify more strongly with the latter group of lawyers--the ones with the rakes. You see yourself hauling in spectacular awards from spellbound juries, or--even better--charging your megaclients outrageously every time you pick up the phone or sign a letter. Even if you're aware that only a relative handful of lawyers are in this position, you don't care. You've got to have a dream. If you don't have a dream, how you gonna make a dream come true?
The trouble with this dream is not that it can't come true. It's the way it comes true. It's what you have to do--and endure--to make the kind of money we're talking about. For many, many well-heeled lawyers at least six of every seven days are phony, exhausting, contentious, irredeemably boring, or a combination of all the above.
One lapsed lawyer I know, who did a short, lavishly paid stint as an associate in a prominent firm, still has what he calls "waking nightmares" about the experience. He tells of routine 14-hour days, followed by telephone calls at home from the office. Of being deprived of any sense of control over his life. Of feeling literally like a slave, and not even a very productive one. The firm's associates, he says, lived in an atmosphere of "pure fear," never seeing their families, dining at their desks, relying almost exclusively on home videotaping for recreation. And they all knew that this was not some hazing tradition reserved for the novices--that the longer they were there, the worse things would get. As they were given more and more responsibility, they would have less and less freedom to say, simply, "I'm going home now."
Of the partners in his firm he says, "If you put them in a movie, no one would believe it." He has never, before or since, encountered such self-importance, humorlessness, abrasiveness, or arrogance in a single body of (mostly) men.
The hours, the atmosphere, the people were all bad enough--but the work, if anything, was worse. He found it impossible to feel any sympathy for the wealthy corporations that were his "clients," or to get any satisfaction out of making them wealthier. Instead of the grand issues that occupied his mind in law school, he focused exclusively on narrow aims, trivialities, tiny subparts of subsections of securities regulations, things too small even to describe to a normal person. At a distance, it all blends into paper. His whole life was paper--scratching in paper, billing paper, juggling subsidiaries and holding companies and important-sounding things that were really all just "paper files in the goddamn drawer."
And the money? "The money actually made it worse," he says. "You felt like--they're paying for this hell. And you've sold away your right to complain."
Fortunately, I Despise Money!
Stories like that didn't frighten me at all when I was a law student. I had no intention of ending up in one of those big fancy firms. I knew that was where the money was, but I wasn't in it for the money. I wanted to do good work. I wanted to help people. Why? Because I was different.
But not as different as you might imagine. I was in school during the glamorous Reagan years, but even then it was common to hear future lawyers declaring intentions as pure as mine. Visit the average law school nowadays and you'll still hear them, or something like them, all up and down the halls. You'll begin to think that, in a few years, when these fine young people get their turn at the bar, the poor and downtrodden are going to have a field day. You'll almost wish you could buy stock in defrauded widows.
Of course, it's just as well you can't. Somehow, when it comes time to put it into practice, nearly all of this youthful idealism, if that's what it is, evaporates. Or gets diverted. In my own case, only a halfhearted trickle ever reached the poor and downtrodden, and it had all run out in a couple of years. What went wrong?
Part of the problem was that I, uh, misjudged myself. I can hardly remember a time in my youth when I didn't aspire to do good. Yet I never seemed to get started. I didn't know where to begin. If I had simply done good here and there, wherever I found myself, the way a dog does fire hydrants--well, what a bright world this would be by now. There was plenty of useful work to be done, and right in front of my nose. But it always seemed petty, or messy, or hard, or doubtful, or something. So I didn't do it. And I continued to aspire to do it. It goes without saying that, when I could no longer avoid taking a tangible step, when it was time to apply my soul-force to something or get off the pot, the person whose needs I consulted was--me. I made no effort to find out whether anybody--the People, for instance--needed another People's Lawyer. It's possible that they could have made better use of an idealistic doctor, or builder, or banker. But I didn't want to be any of those things. I wanted to make use of what I regarded as my own unique gifts. It was like Mother Teresa, brooding over the poor of Calcutta, saying to herself, "I must help these people. Let's see--what am I good at?"
This would not even be worth discussing if it weren't so common--it might almost be called the delusional basis of youthful idealism. Forget the water imagery I used above. When we talk about "tapping" or "channeling" youthful idealism, or worry about its being "wasted" or "diverted," we're just mixing ourselves up. Youthful idealism is not a mighty river. It's the misleading name we give to the kind of effortless doublethink that, as a rule, only young people are capable of. It comes much closer to being a mental disorder--one of those fairly common, not too serious, made-for-TV mental disorders--than a great natural resource. Certainly we are wrong to value it very much for its own sake, or to applaud uncritically every time it breaks out. And when it begins to murmur about law school, we ought to go off like car alarms.
What happened to my soft-focus idealism when I got out of law school was probably typical. For a while I did more or less what I had intended to do--fought the good fight in the company of a small firm of ex-hippies--but the good fight didn't feel the way I'd imagined it would. It was bigger, slower, feebler, sillier, less conclusive, and more boring than I'd realized. More important, I had much less enthusiasm for it than I ever expected to have. It turned out I didn't much care for fighting, for one thing. Nothing ever seemed worth it. I wasn't good at indignation. Some of our clients did engage my sympathies, of course, but the kind of paper-pushing work I did for them--suing their landlords, appealing their convictions, handling their uncontested divorces--always seemed so far removed from their actual lives, so unconnected with them, it was like having a thick sheet of Plexiglas between us, through which we could just barely communicate. That didn't mean the work was any less important or necessary from their point of view--I recognized that. And I did the best I could. But the "me" doing the doing was not the whole me. It was a dutiful, "selfless," radically simplified, politically correct, and considerably shorter me. Before a couple of years had run out, I found it ridiculously easy to ditch this little guy.
There are lots of lawyers who are more committed than I was. My ex-hippie bosses, for instance. They were prey to the same misgivings and alienation, but they didn't give in anywhere near as easily as I did. When I joined them, they had already been fighting the good fight for a decade. But even they would have admitted that the good fight can be profoundly unsatisfying. Dramatic and decisive encounters--cavalry charges--hardly ever happen, and seldom accomplish much. Most lawyers, most of the time, must resign themselves to trench warfare. Indeed, even the simplest disputes may take as long to resolve as World War I did. Like soldiers hunkered down along the western front, lawyers have to slug it out, not for the world, but for a few square yards of it at a time. The issue is never Justice or Reform or Liberty--it's always something hard to explain about the statute of limitations. More than the qualities we usually associate with idealism--courage, elan, incorruptibility, high-mindedness--this kind of struggle calls most of all for simple stubbornness. And at times, frankly, for pettiness, or at least narrowness of vision. To be effective, lawyers must often brood obsessively, and argue with a fanatic intensity, over issues so tiny and technical that other people couldn't see them with a magnifying glass. In order to gain--or avoid yielding--that crucial inch of mud, lawyers are forced to live their lives neck-deep in it. It's a rare lawyer who, in moments of perspective, does not see the whole business as futile and silly. But moments of perspective--especially of the loftier kind--are hard to come by in the trenches.
The good fight is exhausting not because the ends to be achieved are necessarily so colossal, but because the means are so circuitous, so crooked, so absurdly slow and indirect. The ends, when you come down to it, often don't amount to much, even in celebrated cases: a little spasmodic redistribution of wealth, some superficial reform, a precedent that may or may not influence the future, all subject to reversal at a moment's notice. These results are not to be despised--after all, how much good do most people accomplish in their jobs? But they are not usually enough, in prospect, to sustain a lawyer-idealist for many years. So the good fight must often be conducted tag-team style: law students take it up in their summers; eager young graduates carry on for a few years, before losing their eagerness; partners and associates in prosperous firms do their symbolic bit pro bono; more-committed, long-term idealists try to scrape a living out of it, or try to make a living on the side, until making a living gradually displaces everything else. Only a few manage to make a life of it. And of these, how many carry on only because they can't bring themselves to stop, can't bear the thought of joining the other side?
My old firm broke up a few years after I left. Two of my three old bosses found comfortable desk jobs in the state bureaucracy and do not, I believe, miss the struggle at all. But there was a third who was more "political," more passionate, who could not help caring more than the rest of us and who found it much harder to lighten up and forget about the things she was working for. It occurs to me now that she was our true idealist. She hated injustice with an intensity that was inconvenient, even annoying, to the rest of us. And she hated law more than I ever did because its mazelike intricacy, its obscurity, its deviousness were more frustrating to her. I don't know what she could have accomplished in another field, with the same amount of dogged work, in the sunlight and on high ground. But she got stuck in the law, and it thwarted her cruelly. She actually tried leaving it, after the firm broke up. But it was only a short time--I don't know how to say this so it comes out right, but it's true and it seems important to say it--it was only a short time before she hung herself.
OK, So Maybe I Won't Practice Law. With a Law Degree, I Can Do Anything!
Of all the advertised charms of a law degree, one of the most seductive is its flexibility. Often this turns out to be the kicker, the closer, the feature that eliminates the prospective law student's last doubt. The law degree has become the degree of choice for all those who would rather not make any irrevocable choices; who lack unshakable convictions about what, if anything, they want to do with their lives; who could use some time, some room, some psychic slack. Some flexibility. If anything, the promise of flexibility has become more important in recent years, as word of the general malaise among practicing lawyers has begun to filter through to the public. And of course, in a sluggish economy flexibility never hurts. Law school applications were way up in the late 80s; according to undergraduate counselors cited by the New York Times in an article on the phenomenon, belief in the flexibility of a law degree was one of the chief reasons.
But only about a month before that article, the Times was reporting (under the heading "Law Degree Wanes as Passport to Business Job") a growing consensus among placement experts that this very flexibility is a myth: "Personnel executives and business school administrators say a job seeker's legal training is as likely to be seen now as a liability as an asset, and lawyers trying to switch careers say they are often typecast as narrow-minded, confrontational and unimaginative."
It can be even worse than that. For every prospective employer who looks at a lapsed lawyer's resume and thinks, "A lawyer--I hate lawyers," there are going to be many more who look at it and think, "A lawyer--there must be some mistake. I'm not looking for a lawyer." Lawyers in the nonlegal job market tend to spend a lot of their time explaining that (1) there isn't any mistake, (2) they don't want to be lawyers anymore, and (3) why on earth not. Which can be a strenuous task. In the eyes of most people, prospective employers included, there is something confusing, bizarre, perhaps even slightly suspicious about a lawyer seeking a nonlegal job. They can't help but wonder: Are you slumming? Are you looking for a way to make ends meet until you catch on with some fancy law firm? Or, worse, are you some kind of malcontent or loser? Anyway, if law didn't suit you--as you've been insisting all through the interview for the widget sales position--what makes you think you'd be happy in widget sales? Maybe you have unrealistic expectations. Maybe you're unstable. Even the friendliest widget sales manager will be skeptical about you, and justifiably so. You probably wouldn't be happy selling widgets--you only applied for the job because, without your specialized legal training, you're just another dime-a-dozen BA.
Of course, many lapsed lawyers stray only as far as law's fringes, into bureaucratic or legal liaison positions of various kinds where the work is humbler, less remunerative, but still in some way "legal." That's what happened to me. After a few more years of scraping along as a practicing lawyer--this time in a more conventional firm--I moved to another state, where, rather than take the bar exam and start the whole dreary process all over again, I found a job in legal publishing. It was supposed to be semitemporary, but it has turned out, as these things so often do, to be semipermanent. And now, dear reader, I am 35.
Positions like mine are the surest way out of the law profession. Where I work, ex-lawyers are not merely tolerated, they are welcome. Technical knowledge of law is not an embarrassing encumbrance, an "overqualification," but a necessity. So is this the happy ending? Does this prove that a law degree really does give its holder flexibility? Not exactly. For one thing, the typical legal fringe position is nothing to write home about. The chief attraction of my job is that it is legal without being too legal. It's something I "do" with my law degree, something that is neither fully "using" it--that would be practicing law, of course--nor fully "wasting" it. I tell people that I used to be a practicing lawyer, but that now I am something called a "law editor," and it sounds like a logical progression. I sound like a sensible careerist. It's better, perhaps, than putting my hard-earned degree in the back closet with the old coats. But I'm not thanking my lucky stars I went to law school. Neither is anybody I work with. Neither, for that matter, is anybody I have ever come across toiling in what might be called the law's shadow. We may or may not be happy doing the kind of jobs we do. But we would not have gone to law school in the first place in order to get our jobs. We are trying to salvage a meager return on a disastrous educational investment.
A law degree is flexible in that legal knowledge can come in handy in many occupations. But the same could be said for knowledge of rhetoric, psychology, or formal logic, and nobody would suggest that just as a general preparation for life you go out and get specialized degrees in any of these fields. That would be like arming yourself for mosquito season with a blunderbuss. The fact is, there is only one way to make three years of costly legal training pay off, and that's by practicing law. Outside of practice, lawyers' prospects are not especially good. Those who leave the profession are taking an economically indefensible step--but they're desperate. And for every one who leaves, there must be ten who are forced to stay behind.
Everybody who knows lawyers knows lawyers who shouldn't be lawyers--who seem trapped in the profession, like crabs in a tide pool. Perhaps a little voice inside their heads is telling them to cut their losses, but that's not the only voice they hear. Other voices (not all of them inside their heads) are pointing out all the obstacles, the objections, the on-the-other-hands. It's easier to stay put. Most of them bitch and moan and confide a lot in the early years, and then, as their professional careers gradually take shape and their positions solidify, fall silent. But if you can get them talking, they will almost always begin with, "If I had it to do all over again . . . "
The Catcher in the Drain: A Modest Proposal
Do you remember the passage that gave J.D. Salinger's The Catcher in the Rye its title? Never mind, I already looked it up for you:
"I keep picturing all these little kids playing some game in this big field of rye and all. Thousands of little kids, and nobody's around--nobody big, I mean--except me. And I'm standing on the edge of some crazy cliff. What I have to do, I have to catch everybody if they start to go over the cliff--I mean if they're running and they don't look where they're going I have to come out from somewhere and catch them. That's all I'd do all day. I'd just be the catcher in the rye and all. I know it's crazy, but that's the only thing I'd really like to be. I know it's crazy."
The speaker, of course, is Holden Caulfield, and he does sound like he's been under a bit of a strain. But I have to admit that I have a fantasy that runs along similar lines. Except I'm standing on the edge of this crazy drain. And all these kids around me, these college kids, they're so verbal and all, and so idealistic, and so naive, and so unfocused, they remind me of so many Holden Caulfields--only with first-rate resumes, and transcripts available on request. Anyway, there's thousands upon thousands of them, caught up in a game they don't really understand, not having any idea where they're going, and that's how they end up near the big drain. Which is right where I'm waiting for them. I know it's crazy, but it's the only thing I'd really like to be: the Catcher in the Drain.
Then again, what's crazy about it? Our basic problem, as I've outlined at length, is that so many young people--for good reasons, bad reasons, lame reasons, twisted reasons, sometimes no discernible reasons at all--mistakenly think they want to be lawyers. So they close their eyes and take the jump, and it may be years before they realize how profoundly they've screwed up. By that time, the social damage may be all but irreparable. Sure, we can retrofit individual lawyers, painstakingly converting them back into regular people--I am living proof of that. But the process is too wasteful and time-consuming to be practical on a large scale. We need to catch young people before they jump. We need, at the very least, to identify the dissuadables, and go aggressively to work on them.
And who is better qualified for this work than people like me? What I'm envisioning would be a kind of "Scared Straight" program for would-be lawyers, a way of closing the critical communications gap between those who have already made the Big Mistake and those who are just about to. It needn't be expensive or complicated. Lapsed lawyers are a cheap and renewable natural resource. And for many of us, believe me, this would be a labor of profound love. Besides, it would do us good to talk. As Catchers in the Drain we could set up informational forums and debates on college campuses, publish op-ed pieces and public service ads, agitate, proselytize--even conduct field trips to law libraries and courthouses, affording rare views of real-life lawyers at their dreary work. But our real mission would be to serve as "antilaw counselors," going one-on-one with young people who are poised expectantly on the brink of law school.
Many of those young people, of course, probably the vast majority of them, aren't going to be talked out of anything, not even by trained advocates. They are simply determined--in both senses of the word--to become lawyers. There is nothing to do but wish them luck. Or at most urge them to keep an open mind, tell a cautionary tale or two, distribute a fact sheet--then wish them luck. This is a regrettable but necessary form of triage. To be effective, we will have to pass quickly over the many goners in search of the few, strewn here and there at the motivational margins, who can be saved. Who, if they cannot quite literally be talked out of going to law school, can at least be talked into thinking harder about it. And who otherwise, if they encounter no sensible resistance, will enter the legal profession for reasons so naive, so underexamined, so flimsy that years from now they will tell people that they "just stumbled in."
What would we say to them? If you have read this far without getting an idea of the broad outlines, then I haven't done my job. But we wouldn't all say the same thing, anyway. We would each bring our own experiences, disappointments, biases, and regrets to the task. The only thing we would necessarily have in common is this: that, having stumbled, jumped, or been sucked into the law drain ourselves, we managed to crawl back out. That's what will give us credibility. That's what will qualify us to warn others away from the edge.
So This Would, Like, Solve Everything?
No. Did I say that? It's a modest proposal. It would at least take a resource we're not doing very much with--the massive pool of dissatisfied and disheartened lawyers and ex-lawyers--and put it to use on a problem we're not doing very much about. If it only diverts a relative handful from law school, so be it. It's still worth doing. But I recognize that, from a larger perspective, it amounts to just a little more tinkering on the edges.
The core of the problem--70 percent of the world's lawyers, only 5 percent of the world's population--may prove just a tad more intractable. Obviously, some country, somewhere--Zaire?--is not pulling its weight. But apart from a straightforward Lawyer Export Program, it's hard to imagine what to do about it.
I've heard a few decent ideas over the years, suggestions that may be worth a try. One legal reform group has proposed that Lawyer Impact Statements be required in connection with all new legislation. Lawyer Recycling has already been undertaken on a large scale, but the effort could be more thoroughly organized--and we might offer returnable fees. At the very least, the government ought to do something to curb the law schools, which have long been allowed to churn out new lawyers without any decent restraint or regard for the common good. Why not require them to stand behind their product, and refund the tuition of any graduate who, after a few months or a year, is not completely satisfied? That ought to run a few of the marginal operators out of business; if the rest emerge more cautious, less eager to sign up every young wanderer who happens along, so much the better.
But none of these constructive measures is likely to be very effective without a more fundamental change in our attitudes. If we could only abandon our erratic--half-fawning, half-grudging--stance toward the legal profession and those who choose to enter it, and adopt instead a consistent attitude of disapproval, even of mild intolerance, it would do wonders to divert impressionable young people into less destructive occupations. Law will always be financially rewarding. Some lawyers will always be rich. But look at all the lucrative occupations young people don't flock madly into. Look at dentistry. There you have incentives (money, interesting little tools) matched by disincentives (spittle), creating a rough overall balance--and saving us from being overrun. If we can do nothing to diminish the financial incentives that draw the young into law, we can at least begin to balance them with social disincentives.
How many of us would embark lightly upon a law career if, say, our parents, instead of beaming on the idea, set their faces against it, as a matter of principle? If our friends, hearing our plans, reacted with frozen smiles, as though we were flirting with some embarrassing new religion? Or if acquaintances, distant relatives, people at parties, everybody everywhere tended to scatter as soon as the subject of our chosen career came up, as though the conversation had turned, a bit too abruptly, to Amway products?
There's no reason all this has to be spontaneous, either. Intolerance can be orchestrated, sometimes very effectively. During World War I, Britain's young ladies humiliated many able-bodied men into enlisting simply by presenting them, in public, with little white feathers. Of course, we don't have to be that nasty. We could simply withhold the usual congratulations when we meet with someone who has just been admitted to a swanky law school, or landed a job with some prestigious firm. Instead of being delighted to hear news like this, we might be tactfully silent. "Well," we might say after a pause, "it's not always easy to find anything socially useful to do." Or, "I guess every hive has to have a few drones."
But we'd have to be consistent, and we're not especially good at that. We all admit that, in general, there are too many lawyers, but when it's our kid (friend, spouse, lover, niece, cousin, roommate) joining the parade, we figure one more can't hurt. That's how we ended up where we are today.
We don't have an unlimited amount of time. Lawyers, when there are enough of them, are capable of generating their own kind of critical mass. I think we are already seeing it. All of our uncertainties, our difficult decisions, our conflicts of values, our frictions, our doubts, are beginning to gravitate toward that mass. Every imaginable kind of controversy--political, philosophical, ethical, medical, sexual, you name it--is now being resolved (or not resolved) by judicial means, and proceeding this way has already begun to seem natural (or anyway unavoidable). All issues are regarded as unsettled now, unless they have been settled in courtrooms. It's undemocratic, it's inefficient, it's often incoherent. At times, we might be better off flipping a coin, or consulting the entrails of randomly chosen birds. But what can we do? Everything ends up in court nowadays. And the more things end up in court--well, the more things end up in court.
We have been lawyer-ridden for so long that we are becoming resigned to the condition. And that, as the doctors will tell you, is often the beginning of the end. Nothing will save us now but a renewed determination to save ourselves. That means learning to live--to make decisions, to regulate complex affairs, to resolve differences, and even, as much as possible, to do justice--without lawyers. Once we have begun working together toward that goal, we won't need Catchers in the Drain.
Art accompanying story in printed newspaper (not available in this archive): illustration/Andrew Epstein.