is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
The not-so-subtle message conveyed by rabid
impeachment supporters was their disgust over "legal technicalities" and
how lawyers are obstacles at "arriving at the truth." Such shows a
profound misunderstanding of the essence of law and the function of
lawyers in society. But the blame, ironically, ultimately falls on us
lawyers. By our actions and our inability (or ignorance) to convey the
nature of the profession, the public itself has been lured into believing
the misleading propaganda about the true demands of a properly
functioning legal system. And, consequently, democracy as well.
Certainly, there’s a lot to criticize about a legal education
that produces lawyers (although loudly self-righteous) with little or no
respect for the rule of law. When you have lawyers who think nothing of
breaking the evidentiary rules or the Constitution, dishonest in
revealing their sources of evidence, or coach witnesses to lie regarding
the alleged "facts" they declare before a tribunal or the media, then
you know there is something incredibly wrong with the present training
into the profession.
The other thing the impeachment case revealed was the utter incompetence
displayed by a number of the lawyers that prosecuted it (regardless of
the result). While the public, perhaps for political reasons, are
forgiving (even maybe encouraging) of such ineptitude (approaching
stupidity), nevertheless, the profession itself must take a long hard
look as to how we form our lawyers so that pathetic displays of
lawyering be not repeated in the future. Otherwise, we are just allowing
the legal profession’s slide into triviality.
As I wrote years ago, which unfortunately is becoming more apt today:
"Lawyering now seems to be relegated to a matter of flashiness,
presentation, of glibness and marketability. Of Blackberries and
laptops, of designer suits and fashionable parties. Gone seemingly are
the days when the law has been described ‘as a lonely passion,’ of the
rumpled solitary individual buried beneath his files and his books. At
least in the olden days, despite the corruption that even then has been
complained of, eloquence and purpose was apparent. Today, even that has
gone. I have had students who could talk your ears off in highly voluble
and fashionably phrased social conversations but who could not create,
in speech or in writing, a decently coherent, in style and substance,
piece of argumentation. These lawyers could talk to you of shoes by
Manolo Blahnik, the latest trends in pop psychology, their takes on
deconstruction by Derida but could not -- in class or in practice --
summon the appropriate craftsmanship necessary to defend their clients’
interest in court that would be upheld if were left in the light of
day."
Which leads to another thing wrong with present legal education:
rewarding those that seek popularity rather than the duty to be
intellectually humble, honest, and precise. In this regard, I’m reminded
of Bryan Magee in his "Confessions of a Philosopher": "Instead of
writing as clearly as they could they deliberately chose to be obscure,
because they wanted to impress. They put whatever they had to say into
long convoluted sentences full of abstract nouns and technical terms,
sentences which it is difficult for even the most intelligent readers to
think their way clearly -- though when they have, it is surprising how
often it turns out that not much has been said."
Consider a random passage from a local "legal scholar": "Scrutinizing
the visual description in the curvature within the democratic framework
makes a comparative grounding from a liberal perspective furnishing a
metaphorical area for normative advocacies. Such problematique acquires
an expanding accretion, broad prescience, and juristic clarification of
institutional dynamics that categorizes the dualist character from the
perspective of conceptual and practical progression."
Actually I made it up by culling from the writings of various legal
intellectuals. But how anyone who writes such drivel as that above can
be considered an "intellectual" is beyond me. If you found that passage
spouting nonsense, you’re right. And yet, journal after legal journal
are full of such gibberish. Making us complicit in teaching future great
lawyers to write (and think) in this grand manner of confusion.
This is the necessary time to reexamine how we educate future lawyers.
Aside from our society’s obviously growing disrespect for the rule of
law and misunderstanding of the nature of the legal profession, there is
also that aspect of the very relevance of the profession itself. As
opined by the New York Times (Legal Education Reform, 25 November 2011):
"The economic downturn has left many recent law graduates saddled with
crushing student loans and bleak job prospects… Yet, at the same time,
more and more Americans find that they cannot afford any kind of legal
help. Addressing these issues requires changing legal education and how
the profession sees its responsibility to serve the public interest as
well as clients."
Like it or not, lawyers are here to stay. We just need a better kind.
