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At Least Nobody Threatened to Sue Over the Recent Column That Was Critical of Lawyers

January 13, 1991

Akst is right aiming his sights at the excesses inflicted upon us by too many lawyers. But his analysis is incomplete; he does not address the reasons for lawyers' behavior. Lawyers do what judges let them get away with.

Lawyers, like most other people, only respond rationally to the incentives and disincentives that confront them. When they face a result-oriented judiciary that sees public policy-making and ad hoc legislating as its most important functions, the consequences are predictable.

Because of the absence of judicial self-restraint, judge-made law is often a mess, and in some areas it has become not just confused and contradictory, but almost unknowable. The price is a lack of standards and costly litigation.

Lawyers operating in this climate understandably make arguments that serve their clients rather than society. That is the job that society has assigned them. It is supposed to be the job of impartial judges to curb excesses and irrationalities in the law and in the operation of the branch of government they administer.

While Akst's concerns are familiar and justified, I have yet to meet a client who wants to give up any prospect of gain for the sake of sound social policy. This is another application of Pogo's immortal words: "We have met the enemy, and he is us."

Were a lawyer to surrender a client's potentially winnable claim or defense for the sake of a greater public good, he or she would quickly become a defendant in a malpractice lawsuit. We are getting from the law exactly what we demand. It's just there is no such thing as a free lunch, and the tab is increasingly unaffordable.


The writer is a professor emeritus at Loyola Law School.

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