08 May 2006

Of Lawyers and Witches.

Em Rosa at Young Angry Liberal asks (as usual) a provocative question of lawyers:

Are You A Good Witch, Or A Bad Witch?

The metaphor is apt, and segues into some related thoughts I had while watching Mission Impossible III (warning pop up sound) on its opening night on Friday.

Perhaps no profession is closer to witchcraft than law. Attorneys are in the business of wielding a mysterious kind of power. The power they use has little or no obvious connection to ordinary physical reality, but can produce real results. It can divert the course of rivers, cause buildings to spring up or be torn down, imprison people or free them, kill or save lives, grant access to healing or deny it. It is a place where knowing the pertinent rituals, magic words and ancient lore in dusty tomes really can make the difference between success and failure. Like real life magicians, a significant part of the job involves creating memorable images and directing people's attention to the right place at the right time.

It is ethically ambiguous, as the profession recognizes that attorneys may ethically represent anyone regardless of their rightousness of their cause or motives. People trust attorneys about as much as they trust used car salesmen, for really quite similar reasons. Attorneys, like used car salesmen and politicians, have as one of their main jobs negotiating in a relatively unprincipalled way of the value of something which is not obvious. Attorneys deal with people not only in business, but in their personal emotional lives, meddling into issues like the love between a parent and child, marriage and fear from spurned spouses and lovers.

Perhaps, most important, attorneys are in the business of doing the impossible. In the Mission Impossible movies, when someone is wrongfully imprisoned you dial up to impossible mission force to blow up the walls of their cell and fly them out in a helicopter, and when strong evidence points to someone's guilt, the impossible mission force devises an elaborate scheme to kidnap them. In real life, a lawyer petitions a court for the person's release, or draws up an arrest warrant and presents it to a magistrate. Attorneys can make bad tenants disappear (often without a sheriff ever actually appearing to force the issue) and can likewise make mountains of debt disappear (in a bankruptcy filing). People frequently turn to attorneys because there is no other practical way of accomplishing what they need to have accomplished.

Witches summon demons to do their bidding. Attorneys command the efforts of sheriff's deputies, financial institution officials, employers, government officials, witnesses and people in possession of records. They can silence people, or command them to speak.

Also, while attorneys may be ethically ambiguous, their job is not morally neutral. Most versions of witchcraft aren't morally neutral either. There is "white magic" and "black magic", in literature from the Wizard of Oz to Star Wars to Harry Potter, to sources far more ancient than popular culture, back to well before the Brothers Grim recorded European fairy tales. Most attorneys, like most witches of old, usually align with a particular array of allies, rather than switching back and forth across the fence of opposing interests in a particular type of law (particularly in American practice -- in French public law, and in the English barrister system, this kind of side switching is much more common). A big part of an attorneys' job is to convince a judge or jury or negotiation counterpart that he or she is a good witch, when the truth is rarely so clear. Managing how the complex interplay of right and wrong in daily life is viewed by an outsider is the essential nature of the job.

I try to be a good witch most of the time, or at least, to try to fit that role. But, good or bad, much of what I do as an attorney amounts to a sort of modern witchcraft, wielding a mysterious power in order to accomplish impossible things.


Anonymous said...

Lawyers are the tacticians of bullshit.

It's not magic, it's bullshit. that's the reason people pay lawyers, they just don't want to touch the shit.

Our legal system is unnecessarily complex, and lawyers have a vested interest in keeping it complex.

Don't act like you have some Magic Wand, your wand is 3 years of law school, professional organizations, lexus/nexus, and mentoring law partners.

Andrew Oh-Willeke said...

I never said it was honest work.

Most of my work is in estate planning, and quite simply, using the "magic words" in a will or trust, can make hundreds of thousands of dollars of taxes go away. Alternately, a misplaced phrase in the fine print of a trust can cost hundreds of thousands of dollars in taxes.

The "Magic Wand" absolutely is "3 years of law school, professional organizations, lexus/nexus, and mentoring law partners." This doesn't change the fact that this wand allows you to wield the power of the government for private advantage. And, knowing the right words to say can make the difference. Unrepresented people frequently fail to recognize the legally important facts about their own casees, focusing instead, on issues like settlement discussions and that the other side is lying.

Is it complex? Absolutely. Is it unnecessarily so? Perhaps. But, politicians and judges dish out the laws and lawyers have to make them work as they are.

Quite frankly, I'm all for making many of the most complex areas of law (e.g. tax law, habeas corpus law, governmental immunity, civil procedure, criminal sentencing and ERISA pre-emption) a great deal simpler. Colorado is a national leader in simplifying matters such as probate and corporate law.

On the other hand, I'm also for making some areas of the law (e.g. child custody, alimony and damages in personal injury cases) more complex, because there aren't enough rules to make those areas of the law predictable.