The Decline in Civility
AUSTIN -- Probably because I'm supposed to have a sense of humor, I once wound up on a distinguished panel on the subject of legal ethics, which some people consider a joke to begin with. Dan Rather and I were there as agents provocateurs.
We got to attack legal ethics, but the lawyers couldn't attack media ethics, such as they are, because that wasn't the subject (heh, heh, heh). Naturally, though, a couple of the lawyers kept trying to turn the spotlight on multiple media sins -- a typical lawyer trick.
Several of the lawyers on the panel regularly handle "high-profile" cases -- among others were Bob Bennett, Bill Clinton's lawyer, Richard Beckler, who was John Poindexter's lawyer during the Iran-Contra scandal, and Racehorse Haynes of Houston, who defended former Texas House Speaker Goober Mutscher.
After some spiffy sparring in the early rounds -- biff, bam, pop! -- quick footwork, a couple of punishing rights and a general display of extraordinary rhetorical skill, what struck me about all three distinguished members of the defense bar was, finally, not the skill with which they defended their calling but the sorrow with which they regard its current state. In fact, there were even undertones of anguish.
You could hear them struggling with excuses and accountability: Who is responsible for "the Rambo approach," what Rather called the "Just win, baby" kind of lawyering? Beckler set it in the context of a larger societal decline in civility and decency, a game he called "moral annihilation," in which you don't just disagree with your opponent, you try to destroy him, and in which your opponent is not merely mistaken but an evil person.
It seems to me fair to raise a question -- not whether declining standards of civility have affected the law but whether the adversary system at the heart of the legal profession has not produced the decline in civility. As our society becomes increasingly complex and you practically need a lawyer to go to the bathroom, does not that adversarial approach then begin to infect relationships far beyond the courtroom with the I-have-to-win-and-you-have-to-lose mentality of the adversary process?
(The only problem with this theory that lawyers are the root of all evil is that it lets off television and the Reagan administration, which, as we all know, are also the root of all evil.)
Bob Bennett tried to blame the fact that we are a litigious society -- "Sue the bastards!" being as American a response as "Liberty and justice for all" -- on the increasing influence of lawyers in our society, but that's another chicken-and-egg question. Are we a bunch of suing fools, or do we sue one another so much because there is this plague of lawyers loose in the land? One million lawyers, God help us.
Beckler maintains that the criminalization of conduct that should be considered in other contexts (that is, just because someone has done a bad job in public service or otherwise does not necessarily make him a criminal) is one root cause of the current unpopularity of the legal system. Then, of course, we have to blame the lawmakers -- Congress churning out endless laws, legislatures making endless regulations. Except, of course, lawmaking bodies consist mostly of lawyers. Maybe we should bar them from office the way they bar one another from serving on juries.
I suggested that one reason people have so little respect for the law is because it's clear to the meanest intelligence that justice in this country can be bought. Rich folks hire good lawyers and get off, and poor folks go to jail. A perhaps more balanced view was offered by one of the "Olympians" above the fray on the panel, a law professor who maintained that at least poor folks get Legal Aid lawyers -- it's the middle class that can't afford justice. Afraid so.
All three of the defense lawyers were of the opinion that cheaters (almost) never win. As Haynes put it, "Give me a 'Rambo approach' opponent, and I'll beat him in front of a jury. All you have to do is go drink at an icehouse on a Monday night, and you'll find out the American people don't like dirty players, they don't like crack-back blocking, and they don't like piling on. You got to play between the white lines to win. I can beat a dirty player every time."
But no one argued with the observation that perjured testimony is just not that unusual and that most of it comes from cops. Bennett, a former prosecutor, pointed out that cops may be among the most decent citizens around -- track you down to give your wallet back and all that -- but they see themselves as underdogs in the war on crime, and they're damned if they'll let some crook get off just because the evidence against him was illegally obtained.
All in all, four hours was barely enough to begin to scratch the surface of everything that's wrong with the legal profession. As a veteran of hundreds of panels on what's wrong the media, I must say that it's a lot more fun to sit around passing judgment on someone else.