by Kelly B. Mathis
Now is the time of the year when our calendar is full of holiday parties, social engagements and other activities that lead to the inevitable small talk and attempts at deeper conversation with persons we have only just met. If you have been practicing as an attorney for, say three or four months, you have already experienced the reaction that... Oh, so you are an attorney? Well let me as you about this... The inquiries range from a request for free legal advice (which is undoubtedly worth every penny that they have paid for it) to those legal conundrums that only someone who has delved into the intricacies of Marbury v. Madison, Pennoyer v. Neff, or Palsgraff v. Long Island R.R. can appreciate.
With this in mind I have attempted to prepare a primer of a survival guide for the holidays. I wanted to call it A Lawyers Guide For How To Respond To Those Frequently Asked Questions At Holiday Parties For Dummies but the publisher told me that that title would be too long. I told him that he needed to hire his own lawyer so that we could fight about it. I certainly did not want to be susceptible to a lawsuit for false and misleading advertising because the title did not accurately and adequately describe the subject matter of the content. But alas, I stray...
All lawyers are rich
You certainly could start off by explaining about all the lawyers that work for legal aid, public service projects or city and state government (and, if I thought any of my clients would be reading this, I would throw in insurance defense attorneys as well). Of course, this would not be near as much fun as simply looking the person directly in the eyes and stating the obvious: ‘Why do you think I became one?’ If this produces no response follow it up quickly with ‘and your point was...’ Then tell them about your red Ferrari, house on the river (or even better, oceanfront) and your last exotic vacation abroad. Certainly there are attorneys that have amassed huge amounts of cash in this profession. Of course, there are similar examples in many, many professions.
Ask the person to explain what they mean by making a comparison between the legal profession and other professions requiring seven years of college. Then ask them to include in the mixture other professionals that routinely work 50 to 70 hours per week. The only other valid comparisons are physicians and perhaps those in upper management. Then, for good measure, throw in the risk factor that exists for anyone running their own business. If none of this works, simply utter some long incomprehensible Latin phrase and head to the bar for another drink.
Lawyers are unethical
After you suppress the chance to utter the first thought that comes to your mind (because it would be unethical), simply smile and say something like, ‘Is there anything wrong with that?’ Or, ‘several years ago I would have agreed with you but all of the attorneys got together and voted to remove that word from the legal dictionary. So now it is not a problem.’ Or, simply acknowledge the problem and tell them the truth: ‘We lawyers have found a loophole to that problem and simply include the appropriate disclaimer is contained in the fine print that we make sure is in every document that you will ever sign.’
The reality is that lawyers are held to stricter standards of conduct than practically any other profession. We risk losing our license to practice law, and thus our livelihood (since everyone knows that there is no other legitimate job that we could ever do) if we violate the professional code of conduct. If you know that you will be facing a particularly tough crowd simply cut out the disciplinary section from the Florida Bar News. If that doesnít work, excuse yourself and head to the bar for another drink.
How can you defend someone you know is guilty?
Why does everyone automatically assume that all attorneys are criminal defense lawyers? Or that, even if it is not our specialty, we do it from time-to-time? More on that later.
Guilt is a relative thing. Tell them that there are loopholes for that too. Tell them that if lawsuits did not get defended half the lawyers would be out of a job. Then, with no one left to fight, the other half would be out of work as well. When they quit applauding at that thought, explain the dire consequences. Thousands and thousands of crazed and destitute lawyers would be wandering the streets aimlessly with nothing to do. Something like a Dawn of the Dead sequel except that hopefully we would be better dressed.
After you explain that not all lawyers represent criminal defendants, or even try cases, explain that it is not the role of the lawyer to decide whether a client is guilty. We weren’t there. We didn’t see it happen. Our system of justice is set up to consist of an adversarial system with the decision of guilt or innocence to be decided by a jury. Of course, the reality is that even the best criminal defense attorneys cannot turn water into wine. I was having lunch some years ago with a respected criminal defense attorney who was telling me about a recent conversation he had had with one of his clients. His client had asked, ‘Can we win?’ The attorney responded, ‘It depends on what you mean by win.’ When there is very little question as to guilt the victory becomes more narrowly defined. Victory may be avoiding the death penalty or pleading to a lesser offense.
All lawyers are in court all day long
I was admitted to the Bar in the fall of 1988. However, I didnít participate in my first trial until 1989. While composing our family ís form Christmas letter in 1989 I wanted to tell all my family and friends that I had finally had the chance to walk into a courtroom and stand in front of a jury that year. My wife scowled at me and explained that I could do no such thing. It appears that they had all thought I was making arguments to the jury on a daily basis from the moment I graduated law school and started work in Jacksonville. She was quite concerned that they might think less of my legal prowess if they knew the truth.
But we know the truth, don’t we? Not even trial lawyers are in trial all the time. The chances are better than 50 percent that the lawyer who is asked this question is not a trial lawyer and, in certain places like Washington, DC and New York City the chances are less than 1 in 4 that the lawyer will be a trial lawyer. Simply ask your new friend if they would like for their family doctor to perform their next heart bypass operation. Or if they would like for their car mechanic to fix the broken elevator in their office building or the engine on the next plane that they take. If that doesnít work, itís time to head to the bar again.
Why isn’t the law black and white
I’ve been asked several times why the law is so complicated when everything is written down in black and white and therefore the answer should be obvious. For example, once I was asked to explain a way the seemingly simple proposition that everyone who kills another person should receive the same severe punishment. The initial simple logic was hard to argue with. It seemed a simple rule that could be simply applied. But when applied to reality, the exceptions have to creep in. Oh, and how we love exceptions.
I told the person that he and I, and all the other people in the room, would form our own country and his proposition would be the rule of law. Then I explained how we would get into an argument, he would pull a gun on me and I would need to kill him in self-defense. Then I explained how the room would be split in half. We would engage in a civil war and someone would be killed in the battle. I explained that if I dropped my glass on the floor, the person standing next to me could step on the broken glass. I would be put to death if the bleeding could not be stopped. Then a defective cell phone might cause death by emitting radiation which causes cancer. Afterwards I served hamburgers and french fries to the portly gentleman on the other side of the room which induced his heart attack. Of course, these are examples that only a lawyer could love. When I stopped talking I realized that I was alone. There was no one there to ask me why lawyers talk so much. So, I headed to the bar for another drink. The next person I saw asked me why lawyers drink so much...
Have a happy and joyous holiday season.