Guest Column

25 September 1995

The Joke's On All Of Us

By O. Max Gardner III

One example of the caustic tone of the current batch of lawyer jokes is the dead skunk story: What is the difference between a dead skunk and a dead lawyer on the highway? You will find skid marks in front of the skunk!  Another example is the bottom-of-the ocean joke: What do you call 10,000 lawyers at the bottom of the ocean? A good start!

Why are lawyers the object of such attacks? Why do most people believe that the only good lawyer is a dead lawyer? The primary energizing force for this commentary, as well as a sobering look into these and other troublesome problems plaguing the legal profession, can be found in Walt Bachman's Law vs. Life, published by Four Directions Press. However, the truth of the matter is that the answers to these questions are almost as numerous as the number of lawyers. And the number of lawyers today is certainly one of the primary causes for the current "hang them by the neck" attitude toward the legal profession.

Liars may like to figure as they say, but these figures certainly do not lie. From 1970 to 1990, the number of lawyers grew at two times the rate of the population. In absolute numbers, we went from approximately 200,000 lawyers in 1970 to more than 800,000 lawyers in 1990. The United States is projected to have over 1 million lawyers by 2001 if the current growth trends continue. And, by the year 2040 we could have more lawyers than doctors and teachers combined.  As lawyers like to say, these numbers "speak for themselves."

But it is not just the number of lawyers that has created all of this scorn and contempt. It is something more fundamental that has slowly found its way into our society and culture during the past 40 to 50 years. This "something" is the pervasive influence that the law has managed to gain over almost all aspects of everyday life. This "something" is also the underlying notion that ALL conflicts of any shape, size or description must be resolved by laws, lawsuits and courts.

The influence and impact of law and lawyers can be demonstrated by the differences between the sale of a home in 1967 and its re-sale in 1995.  In 1967, 
Mr. Smith and Mr. Jones worked out the details at the dining room table and then went together to an attorney who helped them with a one-page purchase agreement, a deed and a three-page financing packet from the local bank.  When Mr. Jones decided to sell this same property in 1995, the transaction involved two real estate agents, a relocation specialist, two appraisers, a radon test, a lead-base paint test, a furnace inspection, an electrical certification and a structural inspection. The contract was 12 pages long and included several addenda and amendments. The financing documents for the buyers' government-insured loan was a file a quarter of an inch thick, and nobody actually counted the number of sheets of paper. 

As to the resolution of conflicts, we, as a nation, no longer believe in settling our own scores.  We no longer believe it is politically or culturally correct to resolve a conflict without suing.  In fact, many individuals who initially decline to proceed with legal action to enforce and protect their "rights" are labeled as wimps and cowards by their friends and neighbors.  It seems like every time something tragic happens the first question is not "how bad were you injured" but "have you hired a good lawyer?"  And, when a catastrophic accident is reported by the media, our initial shock and grief is quickly displaced by such thoughts as "I bet they have a hell-of-a- lawsuit" and "no telling how much money they will get for that injury."

Our collective preoccupation with lawsuits and lawyers is reflected by the intricate maze of twisted and convoluted laws and regulations that our elected representatives have enacted during the past 45 years.  In the America of the 1990s we have children divorcing parents, landowners prevented from using their own property due to the presence of an owl with spots, school teachers being charged with criminal and civil assault for spanking unruly and disruptive students, and former unmarried lovers of the same and opposite sex seeking a fair division of their "joint property" along with monthly financial support commonly known as "palimony."  We have former employees suing former employers because the loss of their job was somehow related to their age, sex or race.  We have current employees suing current employers because a supervisor made sexually suggestive remarks or comments.  We have disabled citizens suing business owners because their places of business were not fully compatible with their particular handicap.  Some commentators have even observed that today we have short, tall, fat and skinny people regularly suing other short, tall, fat and skinny people for their failure to treat them like all of the other short, tall, fat and skinny people in America.

At the same time, the evidence seems overwhelmingly clear that we hate and despise all of this governmental intrusion into our daily lives.  We wish for the old frontier justice of Davey Crockett and Wyatt Earp.  We long for the days when a handshake, not a pack of lawyers, sealed a deal.  We seek the swift, rough justice of Dodge City rather than the long, protracted and senseless injustice of the O. J. Simpson trial.

The current political debate regarding our federal tax system and the imposition of a so-called "flat tax" under which annual tax returns can be completed on a post-card provides further evidence of our collective desire to return to a simpler time and place.  The popular notion that it would be better to just give up the lucrative 9 to 5 Wall Street position and the exclusive Manhattan condo for a job at a boat dock in Key West is yet another well-known example of this desire to return to the simpler life.

We therefore hate lawyers not just because of who they are and what they do but because we subconsciously hate what has happened to our society in general and to us in particular.  We despise lawyers because they are the most visible objects of our collective sense of helplessness in dealing with the ever increasing governmental regulations of our own private lives.  We viciously attack lawyers because we will be labeled as racists, bigots and even lunatics if we directly attack the Environmental Protection Agency, the Occupational Health & Safety Administration, the Civil Rights Commission, the Department of Justice, the Federal Trade Commission, or the Consumer Protection Commission.  Since it is historically acceptable to vent all of our frustrations against lawyers, it is also politically correct and socially safe to limit our attacks to members of the bar.

All of this does not mean that lawyers are completely free from fault or otherwise innocent victims of our collective wrath.  They are not.  They are too numerous, too greedy, too incompetent, too unethical, and too unprincipled.  They are generally arrogant, selfish and self-seeking individuals.  Their legions are composed of too many members who have either lost or who have never known the true meaning of public service and the full extent of their own ethical obligations.  At the same time, we have allowed this proliferation of the legal profession with all of its blemishes and warts by our ever increasing demand for more laws, more rules and more regulations.  This is why the last laugh and the true joke are on all of us and not just on the lawyers!

In summary, this lawyer-hating nation must recognize that the real problem is not with the lawyers but with the obsessive and delusional demand for the creation of new laws and new rights that can be enforced only through more lawyers and more courts.  The only new law we really and truly need today is a National Truth in Thinking and Talking Act.  We need to resolve the inherent contradiction in who we are and who we want to be.  We need to accept the fact that our experience in the wholesale delegation of all of our social and moral responsibilities to the government has completely and totally failed.  We also need to recognize that our legal system is neither designed nor equipped to resolve every social and personal conflict.  We therefore need to stop despising lawyers just because they personify a society run amuck with an excess of governmental laws, rules and regulations.

Notwithstanding the recent political rumblings out of Washington, the IRS is by no means the only governmental agency that deserves to be dismantled and abolished.  We need to first abolish the notion that "big government" can do everything for everybody and then move forward with an honest evaluation for the who, what, how and why of where we are and where we need to go from here.  And, we need to move quickly because if current trends are allowed to continue we will have more lawyers than we have people by the year 2095!