In my last message, I suggested that great lawyers are optimistic. Not complacent Panglosses. But, rather, pragmatic activists who are inspired by a faith that their actions as attorneys are not pointless. They are people who believe in their own efficacy.
Any experienced lawyer has a deep
repository of war stories in which the wrong thing happened. A correct legal argument was rejected
by a trial judge or an appellate court.
An honest and accurate witness was disbelieved by a jury. An innocent person was charged,
prosecuted, convicted, and sentenced.
Given such experiences, why do lawyers
persist? Perhaps the simplest
account would be that they believe errors are more or less random and will
balance out in the long run. (In
metastasized form, this view might become a belief that the judicial process
produces results that are entirely unrelated to the merits of the underlying
dispute, but that extreme of cynicism is not necessary to explain the
willingness to persist.)
There is something unsatisfying, however,
about this “errors cancel out” view of things. For one thing, it is not clear why errors should
cancel out. Why shouldn’t errors
on one side overwhelm any errors on the other side, as a result of systemic
biases? Why shouldn’t structural
flaws of one kind or another lead to the conclusion that the judicial system is
simply incapable of reaching a just result, at least in certain classes of
cases?
For another thing, the notion that errors
will even out in the long run cannot explain the commitments that lawyers
sometimes make to a single case. I
think, for example, of the work of Brian O’Neill ’74 as the lead attorney for
the plaintiffs in the Exxon-Valdez litigation. The tanker ran aground in March 1989, it was five and one
half years until the jury returned its verdict, it was and another six years
until the Supreme Court denied certiorari. As described in the book Cleaning Up, O’Neill
uprooted his life and moved to Alaska for several years in order to direct the
litigation. His law firm partners
back in Minneapolis borrowed tens of millions of dollars for the expenses of
litigation, many of them offering their homes to secure the borrowing.
It is hard to explain behavior such as
this with the idea that bad luck in one lawsuit will be offset by good luck in
the next one. To me it seems more
natural to conclude that a more fundamental optimism was at work here. The lawyers in question believed in
their hearts that, in the end, the legal system would work. If they did their jobs as well as they
could, if they were skillful advocates on behalf of their clients, their
clients’ interests would be vindicated.
Because of that belief, they were willing to make heroic sacrifices to
continue the litigation.
The best lawyers I have known share that quality. They recognize the imperfections of our legal system. They understand that biases and errors, both human and structural, can lead to miscarriages of justice. But at the end of the day, they believe such outcomes are the exception. With an optimistic faith that, in any given case, the most likely outcome is also the correct one, they choose to go forward and play their role in the process to the very best of their abilities.
