THE STANKOWSKI REPORT #14: Lawyers, Please Leave Your Moral Outrage at the Door

by Stan Stankowski

Ah, dear gentle, sensitive reader. Allow me, after thirteen weeks of pro bono service, to make a personal observation on the realities of law as a profession and the people who populate it. There is little doubt that my posts in the past have touched on this; however, I believe that this week, in light of various verdicts and the turmoil of a Supreme Court nomination, this is a topic that deserves some further exploration. Don't take me lightly, this will certainly affect your career. So listen up.

Ours, at times, is a hypocritical and silly profession. It is a profession that makes it adamantly clear that there is a certain hierarchy of lawyer and none are completely equal. Certain types of law are consistently portrayed as being noble and gracious, while others are denigrated as being intellectually bankrupt and morally loose.

In the beginning, allow me a caveat. I am not some guy who graduated at the bottom of his class, could not find a decent job and am therefore bitter and angry. Actually, I did well. I make a lot of money and I am hardly one to complain about either of those things. Further, I am not a liberal or Democrat by any stretch of the imagination. Indeed, if any one of you asked ten people who know me what my political beliefs are you would receive answers ranging from “somewhere to the right of Attila the Hun” to “he makes Goldwater look liberal.” Nonetheless, I am highly disturbed with the modern trend of the law in general, and in particular, the common and baseless comments that come from right-leaning lawyers.

The problem begins in law school. Those who make good grades want to go to a defense firm, and therefore, they become advocates for any defendant. People who aspire to be plaintiffs' lawyers are routinely debased and criticized by those whose grades and achievements put them at the upper echelon of defense practice. In fact, it is well known at all law schools that only idiots and hacks wish to practice law on the plaintiffs' side of the bar. Below the aspiring plaintiffs' lawyers are those who wish to practice criminal law. Why? Because criminal law is obviously easy. Wait, that is not entirely true, if you want to prosecute, well, that’s all right. You are just public-minded.

This naturally carries on to firm life. The problem that develops is that when you finally get to that big defense firm that pays a bunch of money, you see that the ideological objections to other sorts of law are non-existent. There is not a defense lawyer alive who would not take a really good plaintiffs' case, no matter the cost (the exception being Ted Frank of Overlawyered, who is apparently saving lives with tort reform and otherwise redeeming the honest, i.e., rich, by contributing to society at the rate of $1.5 billion a lifetime. Oh, wait. Didn't he admit that he was plaintiffs' counsel in a few cases? I think so.  But that was for business clients, so that makes it all right.) Similarly, I have yet to meet a plaintiffs' lawyer who would not admit that there are frivolous lawsuits. Yet somehow, we like to position ourselves as bipolar opposites.

The fact is that if you are practicing commercial litigation in a large law firm, you will be the plaintiff as much as you are the defendant. Yet you will still try to comfort yourself by pointing out that this is business, not personal injury, so you are better than plaintiffs' lawyers. Even more so, you will look down on the people who practice criminal law (unless it is white collar, and then, because your clients can pay, criminal work is not that bad). You will tell your associates that they cannot do criminal work because “no one at the firm has any expertise at it,” and “well really, they are criminals, and who wants to deal with those?” Your firm might even rescind an offer to a brilliant lawyer because she has a criminal pro bono case. The excuse will be because the firm does not have the expertise to supervise the case. God knows criminal and civil lawyers are worlds apart and one can never crack the universe of the other. (Strange how appellate courts manage it everyday, but hey, let's not argue.)

And in the end, all of this bullshit is ridiculous. Individuals deserve as much access to the legal system as businesses; persons accused of crimes, for example, need the top graduates arguing for them more than XYZ Corp. does. After all, how important is the possible innocence of a person who may be sentenced to years of rape and violence compared to whether company Z should pay Company Y? And why would you give a damn whether or not some warehouse worker has literally broken his back when Company A has lost .0005% of its profit in a train wreck?

The answer is money, and the ability to pay. And there is nothing wrong with that. However, let's stop trying to pretend it is a matter of intellectual prowess or moral superiority. It is a big paycheck verses a small one. A guaranteed paycheck versus a contingent one. The defense is at least as money-grubbing as the plaintiff and the prosecutor is just as self-serving as the defense lawyer. That is the fact of the matter. If you have to get morally enraged to practice law, may I congenially suggest that you move on to a different field.

About the Author: Stan Stankowski is the pseudonym of a first-year associate working in a litigation firm somewhere in the South. For more details, read his introductory post, as well as Evan Schaeffer's introduction. The collected Stankowski Reports are here.

Comments

[The Sardonic Lawyer]

Sir, allow me to be the first . . .

Thank you.

[Eh Nonymous]

SL: were you thanking him for allowing you to be first, or just for the timely and important post?

Stan, let me be the second to say: Goldwater was a pansy liberal, and Attila would probably have supported big government.

Extremism in the pursuit of a contingent fee award - vice? Moderation in defense of well-paying clients is clearly no virtue.

I liked your post; I sometimes got confused whether your examples of idiocy (e.g., the law school meme that plaintiffs' lawyers = evil and defense law = the brass ring) were being presented sarcastically or not; guess you should be using the [s] tags [/s] so we poor sarcasm-colorblind readers will know which part to read as if seriously and which not.

Perhaps I should have written [s]Goldwater was a pansy [/s] above.

You don't have to be morally outraged to be an effective plaintiffs' side lawyer, but it helps. But you don't have to hate defense lawyer to be angry at eevil-dooers. That is, people who intentionally act to harm others - that kind of malice deserves punitives, in my book, as I've said before.

Don't knock Ted; he's not evil, we just disagree with where he's coming from. I think - do you have evidence that he is, in fact, _evil_? Ted, did you know about this?

While I'm on the subject, I wish to have a moment of silence for Coudert Bros., which this year is passing away, its partners and offices snapped up, transferred, scattered. Their NY office was one of those "we don't do much criminal work here" kinds of places, ditto individual plaintiff's side cases, but they were good at what they did... expanding. They also took on some notable pro bono work, which is notoriously hard work and unrewarding both, sometimes in multiple senses.

[pause for that moment]

That said, man am I glad not to be a NY BigLaw lawyer at a white shoe corporate defense firm.

[Jennifer]

Stan, I guess you should have gone to my law school, where defendants and corporations are EVIL INCARNATE and everyone wanted to be a criminal defense lawyer or an environmental advocate. Those of us in the minority who wanted to work for companies or big defense firms were scorned, and anyone who defended anything anti-consumer or anti-environment, for instance the bankruptcy reform laws, was immediately booed out of class.

That said, you've ruined my day -- come to find out I'm supposed to be the morally superior one?? I was enjoying being an evil money-grubbing defender of Satan!

[The Sardonic Lawyer]

Actually, I goofed my previous entry:

Sir, allow me to be the first . . . .

(golf clap)

Thank you.

[Reformed]

Stan: Your comments regarding the dichotomy of plaintiff and corporate defense attorneys is right on the mark.
Speaking from personal experience, I did well in law school and was able to land a high-paying job at a large, so-called "silk stocking" corporate firm. Taking the large firm job was an easy decision--in law school, if you were fortunate enough to get an offer from a large firm, you took it. A large firm offer in your second year of law school gave you instant prestige, and made some envious. Only the supposed best and brightest got job offers from the big firms. The students in the middle of the pack went to work for insurance defense firms or a second-tier medium-sized firm. Only the scum at the very bottom of the class actually went into plaintiff's contingent fee practice--and this was only because they had no alternatives.
Once at the large firm (beginning in the summer associate stage) you are indoctrinated that big firm lawyers are the "cream of the crop," and that all other lawyers are inferior. By far, the lowest regard was reserved for plaintiff's lawyers, who were considered to be stupid, lazy, sleazy and morally bankrupt. After you hear this enough, you actually begin to believe it--I certainly did.
After seven years of brainwashing and very hard work (and, truth be said, alot of partner ass-kissing on my part), I was only six months from getting the "brass ring"--a partnership in a prestigious law firm. I began thinking about which country club I should join and which swanky private school I should send my kids.
And then suddenly, I had an epiphany. I decided to give up the money and prestige of a large law firm, and form a small plaintiff's contingent fee firm. In one fell swoop, I suddenly went from the pinnacle of the legal profession to the absolute bottom rung. Family, friends and other lawyers at the firm thought I was insane, and my wife wanted to send me to counseling.
Now, ten years after leaving the silk stocking firm, I realize it was the best decision I ever made in my life. I also realize that judging other attorneys by the size of the firm where they work or their type of practice is unadulterated BS. In my experience, most lawyers are very decent people. However, there are also major league assholes out there as well, including some who work for large corporate firms and some who do plaintiff's work.
The long and short of it is: Don't judge others or feel unjustifiably superior.

[Ted]

I've taken lots of plaintiffs' cases, including a successful litigation before the Surface Transportation Board on behalf of a farmers' cooperative challenging ammonia pipeline rates; a number of individual cases, including winning asylum for refugees on two separate occasions; and the biggest role I played in a big case was in a civil forfeiture litigation. I'd have no problem working for a plaintiffs' firm in circumstances where I could do so morally.

But Stan gets what little humor he generates from wild and sloppy exaggeration (for example: nobody has ever hired a defense firm to litigate over 0.0005% of its profits: for even the most profitable company in its most profitable year, that's the value of less than two months of the salary Stan is stealing from his employer), so we'll excuse his insults. But one need only read the first thirteen Stankowski Reports to see the irony of Stan condemning condescending and inappropriate moral superiority.

[Stan]

Ted,

Thanks for taking the time off from "saving lives" with "tort reform," to come over here and comment about exaggeration. Also, I would like you to know that I have started carrying Vioxx in a little velvet pouch with me at all times since you informed me that it "save lives." The next time I see a guy have a heart attack or a child have an asthma attack, they are getting a fist full of Vioxx shoved down their throats.

Also, the stealing reference is just unwarranted.

[David Giacalone]

Evan, Maybe having guest writers ain't that great of an idea. I'm sorry I talked you into it.

[Mahan Atma]

"The answer is money, and the ability to pay. And there is nothing wrong with that."

Actually, I think there is something wrong with that.

[Jerry]

Poor Stan must really be overburdened with work now. Or is that Aniken Skyywalker? With all of the self-analysis and from-the-pulpit style, I thought it was Evan for a while. Sheesh. Only a reported multi-millionaire would get lazy and allow this type of stuff to published on his blog.

[Ted]

There are studies that show that litigation reform improves health-care delivery, which in turn saves lives. Paul Rubin and Joanna Shepherd are doing an interesting study for AEI that argues that tort reform has saved several thousand lives. Helland and Tabarrok are doing a nifty study that demonstrates that excessive product liability has the counterproductive effect of deterring innovation in safety, costing lives. And I firmly believe that litigation reform that would protect the pharmaceutical industry from product liability suits over the adequacy of FDA-approved warning labels would save lives. So I don't think I'm exaggerating in the slightest in that regard. It's telling that you feel you need to misrepresent my position about Vioxx in order to argue against it, but you seem not to have learned that sarcasm is a poor substitute for showing the strength of your position by testing it against the strongest counter-argument.

I'm not sure why you think you have such insight: the senior attorneys you criticize at your firm have seen dozens of arrogant law-school graduates who think that they're above the grubbery of representing clients or treating their paralegals and secretaries and colleagues with respect, and aren't anywhere near as oblivious of your attitude as you might think. So act superior now behind your veil of anonymity, but they're going to have the last laugh, while you wonder why you keep getting the drudgework cannon-fodder assignments.

[Adam Partridge]

Has anyone ever heard anyone ever say "I did really bad in law school"?

[mythago]

Below the aspiring plaintiffs' lawyers are those who wish to practice criminal law. Why? Because criminal law is obviously easy.

Huh. When I want to law school, you had the ones who wanted to be prosecutors and put the bad guys away, and the criminal-defense types split into two camps: the ones who wanted to be Atticus Finch, and the ones who figured that two or three years of trial experience was a ticket to a big-firm job afterward.

[Ted]

Yes, mythago, Stan has unwittingly revealed that he did not go to a top-six law school where (1) anybody with at least minimal social skills who wants a big-firm job can get one so there's no prestige tied in with the acquisition of the job and (2) academics as a career option enters the calculus. His description of the sociological status anxiety at his law school certainly doesn't comport with my Chicago experience. My four-person study group started off at big law firms, but all of us at graduation viewed it as a stepping stone rather than a goal in and of itself, and one's a rising-star AUSA, another's a venture capitalist, and the third has her dream in-house job. My law-school classmate who has had the most success staying in a law firm doesn't even view his $750,000/year partnership as his terminal career goal. And we all marvel at the woman who had the guts to turn down the big money to live hand-to-mouth as a public defender.

[The Sardonic Lawyer]

Some miscellaneous items:

(1) For what it's worth, TSL sincerely doubts Ted is "evil" in the grand sense of the word. As entertaining as it may be to imagine, it is difficult to seriously entertain the notion that Ted spends a significant amount of time hunched over, wringing his hands with glee as he contemplates more and better ways to undermine the common weal. If anyone wants a glimpse of individuals who are truly evil, take a look at my most recent blog entry. I think everyone (including Ted) would agree the individuals I discuss are prime examples of what I call "pedestrian evil", i.e., individuals who are systematically destructive while attempting to convince others, and maybe even themselves, that they are really proponents of the greater good.

(2) That being said, let me make an observation regarding Ted's implicit plea for others here to test their positions against the best counterargument. The fundamental breakdown, as I see it, is that it is pointless to debate a true believer, because there is no realistic hope of having a reasoned discussion. The true believer cannot be convinced by logical argument, will not consider the merits of other opinions, and typically relies on a combination of hopelessly flawed "proof" and rhetoric to "debate" others. After going head-to-head with a few true believers and realizing they will never concede their position, no matter how much the facts and logic contradict them (cf. Bush et al.), most conclude it is not worth the effort, especially since engaging the true believer in "debate" has a tendency to legitimate the true believer's position in the eyes of others (see, e.g., intelligent design v. evolution).

(3) I've never heard anyone say "I did really bad [sic] in law school", but I did go to law school with a gentleman who only wished to do as much as was necessary to slide by with the equivalent of a solid "C" average, since his ambitions would not be affected by the grades he received.

(4) TSL has had a great variety of experience with lawyers from all sizes of firms and backgrounds, and continues to find it mildly irritating that many attorneys who attended top-tier law schools have high opinions of themselves far out of proportion to their actual abilities, and that so many other attorneys follow the herd in assuming attorneys from such law schools are inherently better, more capable, and smarter attorneys despite abundant evidence to the contrary. To state it simply, TSL has dealt with attorneys from top-tier schools with jobs at high-dollar firms who are mediocre at best, and has noted only a weak correlation between law school attended and actual intelligence and ability. In the absence of better information, sure, it's something to help formulate an opinion, but a certain mental inertia seems to exist here, as it does in so many human endeavors.

[Matt]

"There are studies that show that litigation reform improves health-care delivery, which in turn saves lives."

Ted, I have no doubt that if you can continue to cite the Tillinghast study with abandon, AND with a straight face blame plaintiff's lawyers for 9/11, that you can drag up a "study" which will say virtually anything.

Your commitment to the cause, if not the truth, continues to impress.

[Stan]

Ted,

And you call me arrogant? First, allow me to say that, if you do not wish for me to carry debates from other comment threads in which you spout pearls of wisdom such as "Vioxx saves more lives than it takes" and "Tort Reform saves lives" then I shall certainly take all measures necessary to avoid offending in the future. I mean, really, you are so self loathing that I cannot imagine the loathing you might have for me.

And no, Ted, I did not go to a top six law school, though I am more than happy to reveal that fact to anyone, unwittingly or not. Thanks however, for the very humble recounting of your law school classmates' careers. It was the very antithesis of ego. Lesson learned on my part. If only I could achieve such humility.

Now, don't you have some brownshirts to organize or a propaganda blitz to head up? Perhaps a fake newspaper to start?

[mythago]

Stan has unwittingly revealed that he did not go to a top-six law school

Ted, I think you're showing your age here. At least when Aaron and I went to law school (Aaron went to Mighty Impressive U. School of Law; I went to the nearby Less Impressive But Our Moot Court Team Kicks Your Ass Law School), the legal job economy was bad enough that a MIU law degree did not guarantee anyone a six-figure job. And you are fooling yourself if you think that there is no prestige based on salary among MIA grads.