The story so far.
Note. George Orwell said: “The omission is the most powerful form of lie, and it is the duty of the historian to ensure that those lies do not creep into the history books.” Law schools’ neglect of legal history: 1) Facilitates self-deception and rationalisation in lawyers and judges; 2) Means that much of this will be new to them. Ends note.
The common law in England (and later its colonies) began as an extortion racket in 1166. Extorting judges and their lawyer-bagmen formed a cartel to increase profits. Common law judges have never been trained as judges; they are lawyers adept at sophistry, a technique of lying, one day and judges the next.
Justice Russell Fox said the public knows that “justice marches with the truth”. European courts adopted a truth-seeking system after a conference attended by England in 1215. English judges rejected that system in 1219.
Lawyer-politicians have been able to block change to a truth-seeking system since they became an oligarchy in Parliament about 1350. (Vote 1: Anyone but a lawyer.)
Yale law professor Fred Rodell said the adversary system is a racket. The civil version dates from 1460, when lawyers began to take control of evidence. That enabled them to spin the process out and extract more money from clients.
Legal academics joined the cartel after Billy Blackstone, a serial liar, began the first law school at Oxford in 1758.
From 1800, Napoleon reformed the truth-seeking system. It is now the most widespread and important system in the world. We would probably have that system if Admiral Villeneuve had followed Napoleon’s instructions in 1805.
What common lawyers do
This section is a collation of views on various aspects of lawyers’ activities. As noted, the Sophists taught lawyers how to lie 2500 years ago.
1. Down the ages
Some of the following disobliging references to lawyers come from Marlyn Robinson’s The Mouthpiece: Lawyerly Quotations from Popular Culture (Tarlton Law Library, University of Texas):
Cicero (106-43BC), Roman lawyer (4 in The Legal 100): ‘When you have no basis for an argument, abuse the plaintiff.’
Gaius Verres, Governor of Sicily 70-73BC: ‘What I steal the first year goes to increase my own fortune, but the profits of the second year go to lawyers and defense counsels, and the whole of the third year’s take, the largest, is reserved for judges.’
Gaius Cornelius Tacitus (c.55-120AD), Roman lawyer and historian: ‘No commodity was so publicly for sale as the perfidy of lawyers.’
Tacitus quoted Gaius Silius (either the father or son of that name who were Roman consuls in the 1st century; both came to bad ends): ‘If no one paid a fee for lawsuits, there would be less of them! As it is, feuds, charges, malevolence and slander are encouraged. For just as physical illness brings revenue to doctors, so a diseased legal system entices advocates.’
Henry Brinkelow (d. 1546): ‘The lawyer can not vnderstond the matter tyl he fele his mony.’
Jonathan Swift (1726): ‘ … a Society of Men among us, bred up from their Youth in the Art of proving by Words multiplied for the Purpose, that White is Black, and Black is White, according as they are paid.’
Jeremy Bentham (1821): ‘The duty of an advocate is to take fees, and in return for those fees to display to the utmost advantage whatsoever falsehoods the solicitor has put into his brief.’
Mexican curse: ‘May your life be filled with lawyers.’
Don Vito Corleone: ‘A lawyer with a briefcase can steal more than a thousand men with guns.’ – Mario Puzo, The Godfather, 1969.
Seymour Washman: ‘All successful criminal lawyers I know are egomaniacs… there isn’t a criminal lawyer I know – certainly including myself – who hasn’t interpreted a not guilty verdict as proof of his unique gift, his insight into how to manipulate people.’ (Confessions of a Defense Attorney, Village Voice, 28 September 1978.)
Lamar Quin: ‘Mouthpieces for sale to the highest bidder, available to anybody, any crook, any sleazebag with enough money to pay our outrageous fees … you’ll meet so many crooked lawyers you’ll want to quit and find an honest job.’ (John Grisham, lawyer-novelist, The Firm, 1991.)
On the other hand, Viscount (Frederick) Maugham (1866-1958), Chancery judge 1928-34, Lord Chancellor 1938-39 said: ‘Lawyers are the custodians of civilisation, than which there can be no higher or nobler duty.’
2. Serial lying
Harvard ethics professor Arthur Applbaum said in Professional Detachment (Harvard Law Review, 1995): ‘Lawyers might accurately be described as serial liars because they repeatedly try to induce others to believe in the truth of propositions, or in the validity of arguments, that they believe to be false.’
Lawyers said what they do is zealous advocacy sanctioned by the system. Professor Applbaum replied in Ethics for Adversaries (2000) that this was ‘a strategy of redescription’: the Executioner of Paris, Charles-Henri Sanson, was sanctioned by the state but he was still a serial killer.
Sanson had the ‘professional detachment’ of lawyers; he did not distinguish between enemies of the Bourbon regime, Louis XVI himself, and leaders of losing republican factions. In 1793, at the height of the Terror, he beheaded 300 men and women in three days. His son Gabriel slipped in the blood, fell off the guillotine, and was himself killed. That seems fair.
Not all lawyers lie without shame. Law professor James R Elkins, of the University of West Virginia, is author of The Moral Labyrinth of Zealous Advocacy (21 Cap. U. L. Rev. 735 (1992) and Can Zealous Advocacy Be a Moral Enterprise? Professor Elkins said:
[Taking] zealousness to its adversarial limits (all the while promoting the adversarial system as a system of justice) poses a serious moral problem. Basically, we need to admit that there is occasion for shame in our profession. It would be overly dramatic to say that it is a surplus of shame that is driving lawyers from the profession, but something is.
Professor Elkins noted an American Bar Association poll in 1988. It showed that ‘41% of a representative sample of lawyers would choose another profession if they had to make the choice again’, and that ‘alcoholism among lawyers is almost twice as high as for the general population’.
An Australian survey for a young lawyers’ body found in 2004 that almost half of the respondents did not see themselves practising law in five years’ time.
The Sydney Morning Herald (7 September 2006) reported: ‘LawCover, an Australian insurer reported a disturbingly high number of lawyers with depression, stress, alcohol dependency, and gambling addiction.’
In 2006, a survey of 7,000 professionals by Beaton Consulting found lawyers were the second unhappiest [behind patent attorneys] of all occupations.
Lawyers in the US had the highest rate of depression of more than 100 occupations in a 1990 study by Johns Hopkins University, and were almost four times as likely to experience it as the general population.
The question is: if lawyers did not have to lie and pervert justice, but got less money, would they be less, or more, unhappy, depressed, drunk, gamblers?
Next. Ethics, a county in south-east England