The Arizona Republic
Friday, June 18, 1996
Lawyer Tries To Breathe Fresh Air Into His Profession
Columnist, ARIZONA REPUBLIC
You wouldn’t expect someone who Ripped the legal profession to receive an appreciative letter from Supreme Court Justice Sandra Day O’Connor, but Harrison Sheppard’s critique was that good.
Sheppard is a San Francisco attorney whose blunt assault on lawyering was published in the Washington Post three weeks ago. It’s drawn quite a reaction.
“I’ve heard from lawyers, judges, law students and business executives from all over the country,” he said. “Virtually all have been approving, and many offered assistance to help achieve the goals stated in the article.”
The most gratifying response came from O’Connor, who wrote that she and several friends were impressed.
“Keep up your efforts. You are on the right track,” she affirmed.
Sheppard, 56, says lawyers are better at cashing in on conflicts than resolving them. Here’s the heart of his complaint: “Whether or not you have ever hired a lawyer, the behavior of lawyers is taking money out of your pocket. It is also putting many of us into a kind of prison without bars by making us more fearful about many ordinary human interactions. Much of American lawyering has changed life for the worse.
“When I went to law school, I believed that being a lawyer was not only a good way to earn a living but a good way to live. It seemed to me then — as now — that the main purpose of being a lawyer is to help advance justice, peace and human freedom. But law school was a shock to me. Not once in my three years of study was there ever a discussion of how a practicing lawyer can help advance these great ideals. Instead, law school taught me how to argue aggressively, with no quarter given.
“American law schools are exactly the kinds of institutions you would create if you wanted to promote a kind of civil war instead of civil peace. Law schools are schools to help promote profitable conflict. The lawyer as counselor, conciliator, problem-solver and planner used to be the model of the profession. This model has been replaced by the gun for hire, the mercenary warrior.
“Most valid legal claims seem to be without effective remedy, because litigation costs are likely to exceed the losses suffered. But the warrior model of legal practice does more than frustrate rightful claims. It also adds tremendous unnecessary costs to almost everything produced and every service rendered.”
Small wonder that lawyers have become bad jokes in most people’s eyes, he says.
Sheppard thinks lawsuits are needed to settle a very small percentage of disagreements, such as when one party utterly refuses to be reasonable or when conflicting laws need to be resolved. He agrees with the Japanese view that a lawsuit represents failure by the attorney.
Lawyers often justify aggressive conduct by saying they are hired to do all they can to win for a client.
Sheppard rejects that as irresponsibly self-serving and quotes the late Elihu Root:
“About half the practice of a decent lawyer consists in telling would-be clients they are damned fools and should stop.” Sheppard, who once worked for the U.S. Justice Department and now has a solo civil practice, wants lawyers to learn more about settling disputes without warfare.
To help, he developed a legal-education program called the “New Civil Lawyer.” It was endorsed in 1994 by William Ide, then president of American Bar Association, and presented at the ABA’s annual meeting. Sheppard has since made presentations to legal groups across the country.
He says his aim isn’t to condemn all lawyers but to remind them of their civic responsibility and the loss of public respect. He’s hardly given up on the American legal profession, calling it “one of the most civilizing and progressive forces in the history of the world.”
O’Connor isn’t the only ranking jurist to agree with his ideas. Former Chief Justice Earl Warren said the legal profession’s proper role is to help people reach an acceptable result in the shortest period of time with the least amount of stress and at the lowest cost.
That sensible summation seems far removed from the way law is commonly practiced in America today.
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