The American Legal Profession

The Myths and Realities of Practicing Law

Christopher P. Banks

• Publisher: CQ Press
• Year: 2017
• ISBN:
  9781506333106
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Gobierno estadounidense

While emphasizing that lawyers fulfill a vital but often misunderstood public function in society, The American Legal Profession: The Myths and Realities of Practicing Law dispels some of the common misconceptions about the legal profession to show that the reality of being a lawyer is much different from what many students believe it to be. Many students know little about what law school is like or how it differs from undergraduate study, and this book corrects common myths about graduating law school and life after passing the bar. This brief primer is a nuts-and-bolts analysis of what it is really like to go into the legal profession, from start to finish, giving students considering a career in law a realistic overview of their potential legal careers.

1 The Myths and Realities of Being a Lawyer

Many students interested in the legal profession simply do not know what lawyers do or what they represent to American society. Regardless of how they are perceived, it is difficult to dispute that lawyers can be a positive good for society because they are public servants who make enduring contributions to the law’s development and they advance community and client interests. One practitioner with fifty years of experience explained that his first attraction and ultimate love affair with the law was grounded in his respect for “the crucial role lawyers have played in creating and shaping our nation” because attorneys “had unique abilities to help those in crisis and to ensure that equal justice and fairness were more than abstract principles.” With their specialized understanding of the law and its impact, lawyers remain at the forefront of making important legal and political changes to American society. As examples, the practitioner praised “the lawyers who spearheaded the landmark case of Brown v. Board of Education (1954),” which broke down racial barriers by integrating public schools. He also admired “the exploits of Clarence Darrow, [a] courageous defender of unpopular persons and causes.” Darrow was a special inspiration because he represented a high school science teacher who was prosecuted for teaching evolution in the famous Scopes Monkey Trial, among others. For this practitioner and surely for others like him, lawyers like these are simply the unsung heroes of American society.¹

Envisioning lawyers as virtuous and impartial advocates of truth and justice is infused into American popular culture. Especially since the mid 1950s, the stories that surround fictional and nonfictional lawyer heroes like Atticus Finch (from the book and film To Kill a Mockingbird), Perry Mason (from the TV show Perry Mason), and F. Lee Bailey (a famous trial lawyer) reinforce the impression that attorneys selflessly represent idealistic notions of equality, fairness, and justice.² While scholars observe that lawyers were never very popular figures in early English or American history,³ in the 1830s the French philosopher Alexis de Tocqueville countered that lawyers, judges, and the legal profession in general were critical to sustaining the political values underlying democratic governance and individual liberties. Fearful of the negative implications of popular majority rule, Tocqueville reasoned that an active, and educated, elite lawyer class was a crucial counterweight to the ill effects of unrestrained democratic rule and repressive public opinion. In particular, lawyers prevented ordinary citizens from becoming too detached from communal life, which ran the risk of allowing government to step into civil affairs more aggressively and therefore threaten personal freedoms. In his famous Democracy in America exposition, Tocqueville concluded that judges were virtuous political statesmen and that lawyers, as a class, are uniquely equipped to perform public service because of their specialized knowledge of the law.⁴

In spite of Tocqueville’s teachings, many critics today are quick to point out that the legal profession is in crisis.⁵ Public opinion polls are cited to show that not too many citizens believe that lawyers contribute much to society.⁶ Underlying the poll results are a litany of common complaints made by legal scholars and practitioners in the field: (1) law school tuition is skyrocketing, and law school costs too much to attend; (2) many students struggle to find a job and pay down hundreds of thousands of dollars of unsustainable student loan debt after they graduate; (3) law school education is flawed because it does not adequately teach clinical skills, and it is poor preparation for students seeking to compete in an increasingly globalized and technologically sophisticated work space; (4) the legal profession is homogeneous, elitist, and stratified into the haves and the have-nots, with little diversity; (5) most private law practice, especially in what is pejoratively known as Big Law, is driven by profit, and it has become more of a business and less of a profession; and (6) as an educational investment, a law degree is simply not worth it.⁷ Law professor Deborah L. Rhode thus flatly declares that the legal profession is in steep decline in many critical areas of legal education, law practice, and professional regulation.⁸

This book explores some of these criticisms in an effort to separate fact from fiction and to dispel some of the common misconceptions surrounding the American legal profession. It does so by offering a condensed version of the nuts and bolts of the American legal profession. After discussing some of the common myths surrounding lawyers and legal practice, it supplies key information about the prelaw admission process. Thereafter, it turns to explaining the challenges that law school students face not only in law school but also after they pass the bar and endeavor to secure employment in the attempt to practice law. A final consideration is to analyze where the legal profession is headed in the twenty-first century, amid the oft repeated clarion call for reform. A full understanding of what the realities are in the legal profession, though, requires deconstructing some of the most prevalent misconceptions about lawyers and the legal profession.

The Trial Lawyer Myth

Popular renditions of lawyers portray them as always discovering the truth and achieving justice through courtroom trials in perpetually interesting and controversial cases.⁹ In part, the perception flows from the folksy homespun image of a lawyer’s professional identity. The homespun image is inspired by Harper Lee’s portrayal of model country lawyer Atticus Finch in her famous To Kill a Mockingbird (1962). This archetype, which commands respect and community veneration, depicts lawyers as consummate professionals who are selfless, civic minded, and fierce advocates not only of the rule of law but also of clients’ interests. Undeterred by popular passions and causes, Atticus Finch–type lawyers exercise the independent judgment that makes them specially qualified to perform their lawyer role with dignity and honor, a trait that makes them an attractive resource to handle difficult problems or cases in times of legal trouble.¹⁰

Especially in older films, lawyers are similarly portrayed as the main protagonist in courtroom dramas that register their willingness to come to the “defense of the downtrodden,” which is also part of their unwavering commitment to “battling for civil liberties, or single-handedly preventing injustice.”¹¹ This image of the gallant public servant, which some scholars link to the proprietary advocacy interests of the American Bar Association,¹² is reinforced by traditional media and real-life examples. In the film version of To Kill a Mockingbird, country lawyer Atticus Finch zealously defends and protects the dignity of a poor black man who is wrongly accused of raping a young white woman in a southern Alabama town during the Depression. After he saves his client from a lynch mob and displays his remarkable talents as a trial lawyer in a packed courtroom, an all-white jury disregards the evidence that Finch has skillfully presented and convicts the black defendant, who is later killed when he tries to escape. As the story unfolds, Finch shows another side to his character after he chooses to cover up the truth about who killed the young white woman’s father, who was trying to harm Finch’s children after the trial. As a result, in taking on the case, Finch takes many professional risks that place him and his family in mortal danger; and, in covering up the truth about who killed the white girl’s father, Finch shows another side of his humanity by making a complex moral judgment that it is better to protect the real killer, or “mockingbird” (Boo Radley), whose life would be destroyed if he were criminally prosecuted in trying to help protect Finch’s children.¹³

At times, the Atticus Finch portrayal of lawyers and the legal system is illustrated and reinforced by parallel real-life dramas. In Powell v. Alabama (1932), the Supreme Court ruled that the Constitution and its principle of having a fair trial require that defendants must have counsel appointed for them in cases involving the imposition of capital punishment. Roughly thirty years later, in Gideon v. Wainwright (1963), the Supreme Court built upon the Powell precedent by expanding the Sixth Amendment right to have appointed counsel for indigent defendants who need it in all state capital and noncapital prosecutions. In addition, today there are many “unsung heroes in law offices everywhere working competently for ordinary modest fees,” as well as “numerous lawyers serving pro bono in public interest cases or volunteering in clinics” or otherwise engaged in modest-paying government jobs in order to enforce environmental protection laws or worker safety.¹⁴ Still, while much of this under-the-radar work may go unnoticed or even unappreciated by the public, the popular conception that many lawyers live their professional lives in courtroom dramas by arguing cases as trial counsel is an oversimplification of reality.

The Reality

The country lawyer archetype is a distortion of reality because it portrays the lawyering “as we wish it really was and as it sometimes, though rarely, really is.”¹⁵ Although the popular images of what lawyers do are shaped through a variety of media formats (e.g., prime-time television, movies, news outlets, best-selling books, and stand-up comedy or lawyer jokes), clearly...

Table of contents

• Cover
• Half Title
• Acknowledgements
• Title Page
• Copyright Page
• Brief Contents
• Detailed Contents
• Table List
• Illustration List
• Preface
• About the Author
• 1 The Myths and Realities of Being a Lawyer
• 2 Applying to Law School
• 3 Law School
• 4 The Practice of Law
• 5 Future Trends and Reform Issues in the Legal Profession
• Index