Ashamed to be a lawyer?

Pseudonymous blogging lawyer Private Law Tutor confesses her occasional feelings of “shame” at being a lawyer:

I’ve thought and talked and written about the deep discomfort that ebbs and flows in me with my work.  Well, not my work as such, but the work that I do.  The industry I work in.  The impact we have on lives, as lawyers.

Conflict is normal, and sometimes the people in conflict need help to resolve their disputes.  This is what lawyers are primarily engaged in.  Dispute prevention and dispute resolution.  So our primary purpose is good and honourable.  I’m just not always sure that our system and our work meets that standard.

A good friend has asked me a few times now if my discomfort is guilt.  I don’t think it is.  I think it’s deeper than guilt.  After all, guilt can be sorted with an apology. “sorry about that.  I made a mistake”.  I think my discomfort creeps dangerously close to shame.  Shame is a dark shadow that can overtake so much of ourselves.  All of us have it lurking somewhere. …

I met with some colleagues recently for coffee.  We chatted about lots of stuff.  Family.  Friends.  Fun.  Work.   Then this comment, like an electric shock, threw me off my path and back into the shadow of my lawyer shame.  “I like the research.  I like the structured arguments.  But you know the bit where we make out the other person to be something they’re not so our client gets what they want.  I don’t like that”.

Am I just a “liar liar” who doesn’t even know it?

I was speechless as my mind yelled “Are you for real?  Is that the game we’re playing?”.  I felt a bit like I was in suspended animation, unable to do or say anything.  And with that one comment, all my lawyer shame was back.

Is that the game I’m playing?  Is informing someone of the factors that are influential and persuasive, and advising them to present those and minimise and work on their weaker factors, is that as dishonest as that other comment felt.  Have I been completely duped by this industry?  Am I just a “liar liar” who doesn’t even know it?

And then this “Nice people can’t be barristers, because they just can’t do their job properly”.  Another speechless moment.  Really?  REALLY?  Some of my most open and wholehearted conversations have been with my barrister friends.  I believe they are nice people and are completely equipped to do their job properly.

So, in discomfort I sit.  Once again.  It’s dark here in the shadow of shame.

Speaking for myself, I sometimes have analogous feelings about being a lawyer, although I wouldn’t quite label them as “shame”.  In my professional practice as a lawyer before coming to CDU as a legal academic, I assiduously avoided practising in the areas of criminal and family law.  There were several reasons for that personal policy.

Family law especially in my observation is an area where both parties more often that not are out to exact retribution on each other, sometimes at any cost including the truth. I can certainly understand how people reach that stage of mutual bitterness and recrimination, but I don’t want to spend my working life coping with people in such a state of mind.  I know there are others who are better equipped temperamentally to do so.

Victims and their families in criminal matters often report having been as traumatised by their experience with the adversarial legal system as by the original crime.

The reason for my aversion to criminal law practice is slightly different. I worked for a short time as a probation and parole officer for juvenile offenders after my graduation in law.  I fairly quickly noticed that I didn’t have all that much sympathy for many of my young clients.  I could intellectually recognise that many of them had experienced trauma and disadvantage that made their behaviour at least understandable.  However my emotional response was that most of them basically deserved the fate the courts had meted out to them, and in quite a few cases should have been more harshly sentenced in my view (even taking into account criminology research about recidivism and the effects of imprisonment on first offenders).

I didn’t think that was a productive mindset to have in dealing with young offenders, and my conviction was later reinforced when my own immediate family experienced a particularly nasty crime that continues to echo in our lives. I simply would not be able consistently to apply the level of coolness and objectivity that proper legal representation requires.  I had no problem achieving that in the areas of public law and commercial litigation where I mostly practised.

The other main reason for my aversion to practising both in family and criminal law was that I was aware that representing a party in those areas very commonly required aggressive cross-examination of the other side. Victims and their families in criminal matters often report having been as traumatised by their experience with the adversarial legal system as by the original crime.  There’s no way of completely insulating victims (or alleged victims) from such experiences, because the presumption of innocence and a defendant’s right to a fair trial require a reasonably extensive ability to test and challenge adverse evidence.

However I remain to be convinced that justice usually requires the sort of nasty, aggressive cross-examination that one often sees in criminal matters, especially though not exclusively from defence counsel. It’s not quite shame, but I’m certainly not proud to be a member of a profession which continues to permit and even aggressively defend the continuation of such practices with fairly minimal constraint except where children or other “vulnerable” witnessses are involved.

Is a witness whose evidence is exposed by cross-examination as containing inconsistencies more worthy of being believed than a glib, intelligent, well-rehearsed liar?

It’s not even clearly demonstrable that such techniques assist in getting to the truth, or that either judges or juries are very good at detecting the truth when they hear it in any event. Is a witness whose evidence is exposed by cross-examination as containing inconsistencies more worthy of being believed than a glib, intelligent, well-rehearsed liar? Is someone temperamentally able to withstand the pressure of aggressive cross-examination more credible than someone who can’t?   As Barbara Tversky and George Fisher argue:

Bias creeps into memory without our knowledge, without our awareness. While confidence and accuracy are generally correlated, when misleading information is given, witness confidence is often higher for the incorrect information than for the correct information. This leads many to question the competence of the average person to determine credibility issues. Juries are the fact-finders, and credibility issues are to be determined by juries. The issue then arises whether juries are equipped to make these determinations. Expert testimony may not be helpful. Indeed, since the very act of forming a memory creates distortion, how can anyone uncover the “truth” behind a person’s statements? Perhaps it is the terrible truth that in many cases we are simply not capable of determining what happened, yet are duty-bound to so determine. Maybe this is why we cling to the sanctity of the jury and the secrecy of jury findings:

We can put such questions before the jury entirely without fear of embarrassment, because the way the jury resolves the questions and, in all likelihood, the soundness of its answers will remain forever hidden. Perhaps the allure of the black box as a means toward apparent certainty in an uncertain world has tempted us to entrust the jury with more and harder questions than it has the power to answer.

The courts’ reliance on witnesses is built into the common-law judicial system, a reliance that is placed in check by the opposing counsel’s right to cross-examination—an important component of the adversarial legal process—and the law’s trust of the jury’s common sense. The fixation on witnesses reflects the weight given to personal testimony. As shown by recent studies, this weight must be balanced by an awareness that it is not necessary for a witness to lie or be coaxed by prosecutorial error to inaccurately state the facts—the mere fault of being human results in distorted memory and inaccurate testimony.

I’m not arguing that either jury trials or the adversarial system should be abolished.  However, given the well-documented limitations on the ability of that system to detect truth reliably, surely there is a persuasive argument for greater limitations on the ability of counsel to cross-examine witnesses aggressively and thereby inflict surplus trauma on already traumatised people.  Maybe the “shame” label is justified if we as a profession fail constructively to address such issues in light of the findings of modern psychology (including the research of Jonathan Haidt about how humans reach moral judgments).

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27 thoughts on “Ashamed to be a lawyer?”

  1. Very interesting article, is it all about expectations of our clients, the system and the opposition. Seems like we all need to rethink our honourable goals of affordable, fair justice for all, as one of the solid foundations of our country and democracy.

  2. I cross-posted this article at Club Troppo. Here’s a compilation of reader comments so far (may spark discussion here):

    Paul Frijters (academic economist):

    Yes, the ‘arguments for sale’ bit is shameful. Plenty of that in economics. The economists writing reports to support the recent media blitzes for the mineral council or the tobacco industry probably had to keep their noses clenched and keep their minds on the money. It is worse than prostitution because that at least is a desired service without obvious third-party loss.

    Patrick (lawyer):

    I have applied a similar career policy, for largely similar reasons.

    The line about ‘nice people can’t be barristers’, that upsets her so, is certainly not true. It almost helps to have a relatively affable approach to life and others, from my observations, although you also have to have the old fire in the belly bit when it comes to your cases.

    wilful:

    In anecdotal support of your misgivings about family law, I can reflect on my sister’s recent experience. She lost and slot badly, because she had no money to represent herself, the judge was disinterested, and the husband’s lawyers were reprehensible, with no interest whatsoever in the truth, the interests of the Court, the child that was being contested or the Family Law Act. They threw every bit of sh*t at her that they could invent (and it was basically all made up) and they got away with it. They had a barrister, she’s a part-time school teacher, the whole thing left me feeling sick to my stomach. I do not trust or expect justice in the family law courts in Australia any more. The lawyers involved should be deeply ashamed of themselves.

    Jim Rose:

    Much of the job of lawers is to represent the unpopular and the unpleasant. that job does not attract people whose second choice career was in nursing.

    Danielle McCredden (lawyer)

    Interesting thoughts. The things that get to me are the commentaries which suggest that lawyers in private practice are just money-grubbing scam-artists. Sometimes that makes me pause and is a little harder to shake off than the lawyer jokes and other asides. I wonder whether people really do think that about me.

    Most of this is in the nature of perspective. Working in insolvency law, I work on behalf of creditors one day and debtors the next, but at least personally, I like to think that what I am doing is worthwhile and not evil.

    cbp

    I think it’s the $200 ‘stamp-licking’ fee that bugs most people.

    Pedro (lawyer)

    I haven’t got the emotional resilience to deal with family law and kudos to those who can. Sometimes it is easy to imagine things would be better without lawyers, but then a client rings you to talk about their wonderful experience in a no representation tribunal where the magistrate turns out to be a rude cunt totally uninterested in applying the actual law as clearly written in the statute.

    Brett Dawson:

    Jim Rose said
    ‘Much of the job of lawers is to represent the unpopular and the unpleasant’.
    Don’t you mean ‘misrepresent”?
    When the other side says ‘your client’s pants are on fire’, the ‘job’ is to say ‘no they’re not’
    Even when they obviously are.
    Doesn’t do anyone much good, in the longer term, actually.

  3. Great article, Ken. Some interesting points you raised. I think a lot of young lawyers don’t get their hands dirty at the beginning of their careers. I remember Julian Burnside saying that it was good for the soul to starve for a while getting experience in different facets of the law. This encourages compassion and fairness, but in saying that, it also depends on the person themselves. No good employing Nicola who got a 99 ENTER score into Monash if she can’t deal with a broad range of humanity. The issue of Family Law is an interesting one. It should be a core subject…now…even if you never get into Family Law. Finally, many law firms are now under pressure due to the bottom line. Pressure from up top to get the results to feed the coffers. No wonder many are ditching the garb and heading for dem hills….

  4. This article by Private Law Tutor is certainly thought provoking and something everyone should think about – not just those within the legal profession. Life itself is adversarial, it’s almost unavoidable given our human traits, especially that of competitiveness. Downright nastiness is a different kettle of fish though.

    We all, however, suffer from shame – if we didn’t, we could hardly be human, or at least label ourselves as being caring and responsible human beings – surely shame is a recognition of our own failings? When I was a serving police officer I often felt ashamed by the actions of others wearing the same uniform; the almost endemic institutionalised racism, the unfair treatment of those less fortunate, but thankfully the majority with whom I served were decent and caring men and women. Given the clarity of hindsight I often feel ashamed of many of my own actions, and certainly not limited to just my police career.

    Truth is a strange beast – there will always be a difference between the evidence of two witnesses of the same event. The truth will lie somewhere between the two – perhaps on a sliding scale? But how do we get to the ‘real truth’? The high hurdle presented by the burden of proof beyond reasonable doubt, at least in criminal matters convictions, is a good starting point. Self-examination and self-correction are always available to those who seek it, but how do we mandate reasonableness for those found lacking? Obviously Codes of Conduct, with or without teeth, and even legislative rules of behaviour will only work for those who possess reasonableness in the first place, but there are always the bad eggs, the rotten apples, who will spoil it for those who care.

    Full-length ‘honesty mirrors’ may be one way, but I don’t think they’re available yet – but I haven’t checked eBay for a while…

    Education, and more reminders of our failings from those of the ilk of Private Law Tutor are perhaps the best answer. Perhaps a unit in the applicable subject within modern psychology should be considered as part of a law degree?

  5. I think there is an understandable inherent preference for an inquisatorial system over an adversarial system. The point of inquisatorial systems (at least in theory) is to find the truth, and it is difficult to dispute that finding the truth of a matter is better than an adversarial system where the truth is irrelevant and the issue is trying to prove something “beyond reasonable doubt”, or in the case of the defence, trying to plant the seed of doubt so as to stop guilt being established.

    We have seen many instances of guilt not being established followed by loud crowing about innocence. I know it’s a long time ago (1996) but when John Elliott was found not guilty owing to a technicality (which prevented evidence being presented), he screamed his innocence from the rooftops.

    However, the truth was never discovered and was entirely ignored in the massive legal battle which was entirely aimed at preventing truth from being investigated.

    Equally, there is the “golden thread” of English common law justice which demands that the prosecution prove their case beyond reasonable doubt so as to prevent any innocent person being convcted – an equally praiseworthy goal to the discovery of truth, one may think.

    Indeed, in LWZ101 Introduction to Law, the lecturer was vociferous in his insistence that lawyers are the noblest profession – the only one where lies are prohibited. Now I don’t suppose anyone knows a lawyer who tells the truth, so the whole profession is an ingenious play on words to avoid telling the truth without ever lying…

    No wonder some lawyers occasionally feel ashamed.

  6. Middle class guilt or shame – having worked in Community Corrections I understand the apparent feeling that one lacks empathy for the offender or alleged offender prior to sentencinng. I am however, most certain that the adverserial system works and every person is entitled to good legal represenation. Knowing you do what you’ve been educated and trained to do, and you’ve have done just that to the best of your ability is very satisfying and rewarding. Perhaps an ethics or hypothetical situation wouldn’t be out of place by way of a mooting exercise and self examination as to our own prejudices and fears prior to admission is in order?

    1. Hmmm, ‘most certain that the adversarial system works’- I don’t think I can agree. At highest I should think it should be said that there is often precious little ‘justice’ in our justice system; its a ‘legal’ system.
      Try telling the parents of a 6 year old who has reported being sexually assaulted that (over 12 months later) the charge does not have a ‘reasonable prospect of conviction’ because the young persons memory of the event is ‘inconsistent’.

      I agree that every person is entitled to ‘good’ legal representation however, but that conflicts with the story a prosecutor friend of mine told me: a trial he ran where counsel fell asleep during cross examination of the defendant (the magistrate looked at him and said ‘proceed Mr. prosecutor’).

      The ‘legal’ system we have is often battered, cynical and as the original post suggests, often leaves the ‘victims’ feeling re-victimised. Yes, I think it could be a hell of a lot better.
      But you know what else?
      I think it could be a HELL of a lot worse.

      Those of you with ethics, continue to apply them and lie straight in bed.
      Those without, well….. you haven’t even read this far anyway.

      1. Hi Mike
        I love your closing line. Ethics, is, of course, the key. Having the internal fortitude to argue a case on its merits without recourse to lies, fabrications, or even to stretching of the truth, should be our goal.

        Of course, there is risk in this for our client. And I guess that it is easy to take risks with someone else’s liberty or money. However, when lawyers elect to do battle with the intent of simply trying to win at any cost, no-one’s purposes are really served by this. Truth and justice most definitely suffer.

        I was going to make some high-moral-ground statement about how witnesses should be treated. I won’t, because I have thought better of it. There is a time and a place for witnesses to be destroyed in the witness box – for instance, when dealing with a corporate psychopath. But we should be able to discriminate between such creatures and those who it is clear have had a wrong committed against them.

        Lawyers are not alone in feeling guilt or shame about what they do. I worked in mental health for 25 years. Much of psychiatry, psychology and affiliated fields is simply mind-numbing rubbish. Patients tend to get better despite our intervention. I found that in in-patient settings, the weekends, when no doctors or counsellors were around, were when the patients were most amicable and reasonable. It seems to me that the environment (relatively stress-free, giving the individual time to gather their thoughts and compose themselves) was much more important than the “therapy”. Consequently, mental health workers spend a lot of their time feeling like frauds. Yet we know that sometimes, when the right thing is said or done at just the right time, something amazing can result from it. And so, like lawyers, we see a reason to continue.

  7. Lucy-Anne

    I’m hoping that Neil Watt wll be undertaking some role plays/ethical mooting and similar exercises in LWZ320 Professional Responsibility in semester 2. He is a very highly regarded person in the field of legal ethics, perhaps Australia’s leading expert.

    1. Hi Ken, I know Neill is coming to CDU, I’ve been following/stalking him in twitter – any chance he might stay till I do LWZ320????

  8. Here’s another comment of mine cross-posted from Club troppo that’s worth thinking about (in my opinion):

    I did say in the primary post that I wasn’t advocating abolishing either juries or the adverarial common law system. I think you’re right about civil law systems, although there are at least SOME aspects from which we could learn.

    More importantly, there are reforms/fine-tuning of our existing system that would improve the things I find troublesome. They include:

    (1) Judges intervening more frequently to inhibit counsel from cross-examining too aggressively;

    (2) If a highly prejudicial allegation to be put in XM is supported only by one’s client’s instructions (i.e. wholly uncorroborated), perhaps that lawyer should have some sort of duty to make independent inquiries before putting the allegation. There was a Darwin family lawyer who was notorious for putting allegations of child sexual abuse to her opponent’s client in almost every case. Whether she coached her clients to make such allegations is an open question, but even if she didn’t surely it should not be open slather to make such allegations without any evidentiary foundation.

    (3) Judge to have power (not just with “vulnerable” witnesses) to require counsel to list in writing sensitive/highly prejudicial issues on which he/she wishes to XM, with (say) a counsel assisting actually framing and asking the questions of the witness to ensure they aren’t asked in an unduly aggressive, hectoring or unfair manner. No doubt barristers would complain that this was an undue interference with their conduct of the trial, but in my view it’s an appropriate safeguard/balance as long as the judge exercises the power carefully

    (4) “Hot-tubbing” to resolve/clarify conflict between expert witnesses. The courtroom circus of patently partisan expert witnesses, and the impossibility of either judges or juries working out reliably which is telling the truth if evidence is given in the conventional format, is another aspect that comes close to inducing shame about being a lawyer. See http://blog.patentology.com.au/2012/05/federal-court-conducts-markman-style.html

  9. Interesting timing on this since yesterday during the law lecture this very topic rose its head yet again. I heard it said, “You have to think like a lawyer…” and this in the context of getting rid of ’emotions’ and ‘principles’ – use the left brain, not the right. The example was given that if someone who rapes a child or murders an innocent person comes to you for your help, you are going to look at this person as one who is entitled to justice – to fair treatment by the law.

    I am sitting at my computer a good many miles away during this live lecture. I am imagining a murderer or a rapist in his hour of need standing in front of me. I am seeing a big ol’ door. I am offering him the only advise I can. “Please be sure it doesn’t hit you senseless as you leave…”

    I think we are all made up of different stuff. Now that I have embarked on a law degree I can understand why I have come across so many lawyers who caused me to question how on earth they sleep at night. This is how law students are taught to think. Kill of the right hand brain cells and use that analytical left side to solve the issue.

    To be honest, all this was really beginning to play on my mind. Why was I now the one not sleeping at night? Why am I doing this degree? A fire inside brought me to this point … but it really felt like someone was trying to throw water on my fire now.

    One of my recent assignments was to write a ‘Court Visit Report’ and I chose to do mine on a specialist court that meant something to me. It was while I was sitting in that court room and while I watched and heard the Magistrate and felt my spirit rise again. I will even admit to feeling just a tad sorry for the lawyer defending his client – who had (eventually) decided to plead guilty. The moral of that story ran along the lines of, “make sure you know the rules better than the one you’re trying to convince does…” It was truly entertaining and inspiring.

    There will always be those who see the rights of a man accused of a crime who seeks a fair trial, and there will be those who see the rights of those who have been hurt who need a fair go. I doubt there will ever be a shortage of those prepared to defend the rights of both sides. I choose the right side or at least the preservation of the right side of my brain.

  10. Another exchange from Club Troppo post worth copying here:

    Pedro

    Ken, given the nature of our duty to the Court, I should have thought unsubstantiated allegations of such a serious nature would be verging on misconduct. I’m a commercial lawyer so I don’t see quite the same things, but I’ve no doubt that it is a breach of my professional duty to support my client doing wrong; and I don’t think you can hide behind “I am instructed”.

    Brandis in the Oz today makes a good case for certain lawyers bringing us into disrepute with pathetic excuses of avoiding the right thing.

    Ken Parish

    I agree that if a client instructs a lawyer to make a highly prejudicial allegation in XM for which there is no evidence and on which the client themselves cannot/will not give admissible evidence, it may well be verging on misconduct to put such an allegation (although I’m not sure). However what of the more common situation (especially occurring in family law and crime) where the client DOES go into evidence and make such an allegation but there is no other evidence whatever to support it? Often in such cases, and almost by definition, there will be no other witnesses to what occurred other than the husband/wife or victim/alleged offender. How should the law deal with that? Fairly clearly such evidence must be permitted, and equally clearly the contrary allegation must be put in XM.

    However the tone and aggressiveness with which it is put is another matter. Equally, I’m sure it’s not uncommon for lawyers to effectively coach their clients to put such allegations e.g. allegations of child sex abuse, drug taking, prostitution, domestic violence etc in family law cases (the everyday currency of such matters as far as I can see). The dividing line between improper coaching and appropriate advice on what the law says and the strengths and weaknesses of one’s client’s case is potentially a tricky one and not easily susceptible to effective ethical regulation. If such advice is given in a tendentious way, especially before a statement/proof of evidence is taken from the client, then even quite obtuse clients may easily work out how to “improve” their evidence.

  11. As the saying goes… “Everybody hates lawyers until they need one”. This is especially true of family lawyers, but there is no basis in fact for it.
    Unfortunately, most of the people who criticise family lawyers and the family law system have either been litigants themselves, or know somebody who has, or have created for themselves a self-fulfilling prophecy that ‘it takes a particular type of person to be a family lawyer’. In any case, very few critics of family lawyers, and the legal framework in which they work, have ever practiced as a family lawyer. Even fewer contribute to the debate from an objective point of view. It follows that many of these ‘criticisms’ are often little more than a reflection of the critic’s own biases, moral convictions and cultural conditioning – they rarely resemble anything in the way of objective and credible research on the topic.
    Of course, most family law practitioners are well accustomed to this sort of unconscientious criticism – most of our clients are the perpetrators of it! What troubles me more is lawyers, familiar with the ideal of objectivity and impartiality in representing clients, jumping to unsupported conclusions about what family law is all about. Family lawyers are paid to advise and represent, not assume the position of, their clients. As such, we provide the relevant advice and then take instructions from our clients as to what steps they wish to take on the basis of that advice. If that means impugning the character of the other party, the evidence supports this, and there no conflicting ethical obligations, then those are the instructions we must follow. Either that or we’re out of a job. The point to make is that the same principles apply to all lawyers, regardless of what area of law they work in, and all lawyers know this.
    Time and time again I am asked by other lawyers, academic colleagues and law students, “How did you do family law with all the emotion and stress? – you must be mad (which really means ‘you must have no soul!’)”. My answer, every time, is that it’s not MY emotion, and its not MY stress. So long as I provide sound advice, and adopt a sound strategy to act on my client’s instructions, my job is done. People find themselves in family law proceedings because of decisions THEY, not their lawyer, have made in their lives. Put another way, so long as I’ve fulfilled my professional duties to the client and the court, there is no reason whatsoever to hold myself accountable for the outcome of any particular case. Shame?….hardly…the role of the family lawyer is to help people first realise, and then finally resolve, the consequences of the decisions they’ve made in their lives up until that point. I, and many other family law practitioners, have taken great satisfaction from being able to do that for people that genuinely want to resolve their disputes. The practice of family law is a virtuous one, not a shameful one. To the extent that I have ever felt shame as a family lawyer, it was when I left the profession to pursue a career in academia – I have struggled, at times, to see that my contribution to society as an academic is as meaningful as it was when I was a family law practitioner…
    Of course, it’s a rare occasion that both parties walk away from a family law ‘battle’ entirely happy, and this, I believe, is the impetus for much of the criticism directed to family lawyers. The same thing happens in all areas of litigation, but it is more pronounced in family law given the subject matter of family law disputes. Importantly, however, if dissatisfaction amongst litigants is attributable to some sort of failing, it is a failing of the law, not of family lawyers (certainly never of family lawyers in a generic sense) – critics of family lawyers may achieve more satisfaction by directing their criticisms to our politicians responsible for implementing the statutory framework in which family lawyers work, rather than family lawyers themselves.
    So I ask myself, what makes it more wrong, as some seem to suggest, for a family lawyer to attack the credibility of a mother in a child custody dispute, acting on the instructions and evidence of the father, about matters which the Family Law Act clearly states are relevant considerations for the court, than to attack the credibility of the same mother in an action for breach of contract, acting on the instructions and evidence of the father, about matters which the common law of contract clearly states are relevant considerations for the court? What makes the same adversarial approach to lawyering so much more palatable and ‘less shameful’ in the contract law context, than the family law context? The answer, it seems quite clear to me, lies not in any objective assessment of the role of the lawyer in each of these two contexts, but rather in accepting that that family law, of it’s very nature, is an easy target for those looking to blame lawyers for the outcomes of their own life decisions, at least until they need one again. It follows that the battle for family lawyers, in improving their reputation, is not to combat the criticisms themselves, but rather the misconceptions and misunderstandings that drive them.

  12. Hi Shaune

    Those are all powerful and well made points.

    My criticisms are wider and more systemic. I’m not not criticising individual FL practitioners (apart from the Darwin one I mentioned who even fellow practitioners regarded with disfavour for this propensity) but rather the systemic aspects which don’t effectively sanction this sort of behaviour by the minority of practitioners willing to adopt “win at all costs” strategies. I have no doubt you would have encountered such practitioners in your time in practice. I certainly did.

    I would not suggest that there is any greater proportion of family lawyers prone to this sort of behaviour than in any other area of law. However family law and crime are more susceptible to the giving of inflammatory oral evidence than areas like contract law, public law etc. The evidence in the former areas is usually overwhelmingly oral and typically key events are witnessed only by victim and alleged perpetrator or by husband and wife, whereas in contracts, etc there will invariably be much documentary evidence and numerous witnesses to key meetings etc. Hence the scope for confected highly prejudicial evidence is much less in contract etc matters. Moreover the legal issues typically don’t involve subjective “moral” aspects and judgments quite as overtly as is the case with family law and crime.

    Crime is an area you don’t focus on in your comment but which is equally problematic in my (long) experience. There is a significant minority of defence lawyers who as a matter of course aggressively cross-examine (alleged) victims especially in sexual assault cases. There ARE now some constraints on this in most jurisdictions, however sexual assault victims still frequently report feeling as ravaged by their encounter with the legal system as by the rapist. The constraints/reforms I’m suggesting would assist in this area as well in my view.

    The reforms I’m suggesting be considered in relation to checks and balances on the giving of highly prejudicial oral evidence are proposed generally not just for family law and crime matters. However I suspect their main use would be in those sorts of matters.

    1. Hi Ken,
      I certainly appreciate where you’re coming from, and I agree that the issue of over-enthusiastic adversarial lawyers is a real one, and is something that has contributed to the poor reputation of lawyers generally in our society. But I think we need to be careful that, in recognising this particular issue, we’re not propogating the same misconceptions and misunderstandings that fuel criticisms of lawyers generally.
      I don’t disagree that in some family law matters the lawyers for the parties adopt agressive tactics, and that in some criminal law trials, the defence lawyers adopt the same approach. But I do take issue with identifying these two areas of law in particular as being the areas where this sort of thing is more prominent. Is there any credible research to support this contention? Is it not possible that a workplace sexual harrasment suit, under statute, contract or tort, or a personal injuries suit in contract or tort, could be prosecuted or defended by adopting an equally agressive adverserial approach that capitalises on the subjectivities, the emotions and the moral convictions of the parties, the witnesses and even the judges themselves?
      I just think that identifying family law and criminal law as those two areas of the law that are deserving of greater checks and balances in terms of professional ethics is to make two largely unsupported assumptions: (1) that family law and criminal law are more susceptable to the giving of emotionally charged evidence; and (2) that family lawyers and criminal lawyers more often capitlise on vulnerable witnesses by adopting agressive approaches to the way they do their job (I note that you have expressly excluded this as an argument, but I’m not sure these two assumptions can be meaningfully separated).
      All of this aside, I’m far from convinced that, even if there were tighter contraints on the ability of lawyers to adopt agressive adversial methods in handling a case, which applied to ALL lawyers, this would alleviate the ‘shame’ element you’ve identified. To my mind, our politicians and big business moguls that control the purse strings have much more to do with influencing public perceptions of lawyers than anything lawyers say or do in the courtroom. I was less than honest in my previous post when I said I hardly feel shame about being a lawyer. In fact I often do. For example, when I meet new people I go out of my way to avoid telling them I’m a lawyer (former practitioner as the case may be) because I expect that they will pre-judge me as a shonky and untrustworthy person. Importantly though, this ‘shame’ that I often feel has got nothing to do with how I conducted myself in legal practice, or how my colleagues do. Its purely about the public perceptions of lawyers generally.The fact that on occassions we, as lawyers, feel shame at all, is itself a manifestation of what society would have us beleive about our own worth, and the value of our contribution to society. Fight it off I say!

  13. Good article Ken, and very topical. Lets just reflect on Craig Thomson’s “witness” – his half brother. This man is a “witness” to the fact that someone “threatened” Mr Thomson that they would “get him” with prostitutes – damn what a nice enemy HE must be! And to obtain and use his credit card to pay for these “services” AND to sign his name on statements, Wow he IS a multi-tasker and worthy of winning the next “Apprentice” round!

    No, in many cases solicitors / barristers do not need to be nasty to get their point across…sometimes a criminals stupidity speaks for itself. Juries (being the general public) spot this idiocy a mile away, and generally any fool that would believe such codswallop has been earmarked for the “thanks, but we dont need your services” at Jury selection.

    But when it comes to Family Law, now THATS a different matter. This SHOULD be in front of a jury – I know many would disagree, but when you have a system that doesn’t penalise purgery, accepts testimony without evidence, Barristers, solicitors and judges who extend some matters out for their own financial, emotional or political gain, and a system that supports a blatant (and I know some women will disagree) sexist perspective, that’s where you do need the rationality of the public at large to step in and say “hold up”.

    There is Judicial Independence, and then there is the ‘assumption’ of judicial independence, and frankly in my opinion our legal system has gotten it wrong. Just like the political parties of our time, our judicial system is “broken” – there is far too much latitude in judgements and there are far too many groups and individuals pulling strings.

    Our problems are not (in the main) nasty and corrupt barristers, solicitors and judges; our problems are far greater than that. Our problem is that we, the general public, have handed our ability to decide for ourselves what is right and wrong to a minority.

    You would think that I hate lawyers (even though I am a law student), but no, not at least in the main. I have met and worked for some very corrupt and nasty lawyers. I have witnessed the nastiness of some and I do feel ashamed, but not because of my choice but because of theirs. I have struggled with trying to justify to my husband that this is what I want to do in the face of him (and me) being accused of some amazing things in Family proceedings. But the fact is you cant control others, but what you can do is to change the system that they function within or at least help a few lost soles achieve the justice that we are all deserving of in a respectable manner.

    I have witnessed a few barristers (in Family proceedings) lull the other party into a false sense of security (in a very polite and coaxing manner) allowing the questioning to show their complete fabrications. I have assisted in personal legal matters where just a letter noting serious and fraudulent inaccuracies of “evidence” have been sent a week before a conference, which resulted in an agreement in accordance with the original offer – both saving a HUGE amount of money and bewildering even the acting solicitor. But the singular factor that remains in both instances is – a stupid “criminal”/ “liar”.

    Yes there are people in the world who are nasty, bitter, vindictive and some who are just mentally not all there and haven’t been put away yet (I am certain I dated a few of THEM in my time). But you cannot expect to “fix” them – I have enough problems trying to wake my Great Grandmother up from whatever roses she is smelling and convince her that Juliar Gillard IS NOT the best female PM Australia could have, trying to change a lawyers behaviors, well even Ken has admitted the industry wont agree to a Code of Ethics!

    All we, as budding lawyers, CAN do is to change how the “system” runs from the inside by demonstrating better behaviors than our forbears – and yes, that’s the same for all parts of our lives, not just the professional side.

  14. The vast majority – around 95% of all criminal matters – are dealt with in the Magistrates Court, and the majority of those as sentences, not trials.
    Even those which make it to the district or supreme courts, the vast majority will go directly to sentence upon a plea of guilty, leaving only a tiny amount of criminal matters ending in a trial of the accused.

    Sentences have far more to do with negotiation than with a win at all costs contest, because there is little to contest when an accused pleads guilty.

    The adversarial nature of the legal system therefore has little to do with the vast majority of criminal matters.

    However, criminal defence lawyers will always ‘cop a bad rap’ because of their portrayal by the popular media as the defenders of the un-defendable, of the child abusers, of the murderers. This is usually the first question students ask when studying criminal law, “how can defence lawyers defend those people!”.

    Invariably defence lawyers are not ‘defending’ in the strict sense of the word, they are representing people who have entered a plea of guilty to an offence. In this way the lawyer is not arguing that the person is not guilty, they are merely ensuring that the accused understands the ramifications of their choice, the likely penalty to come from it, and to ensure that the sentencing legislation is applied to the offender in a fair and just manner.

    Even those defence lawyers who ‘defend’ an accused at trial are not trying to ‘prove’ their client’s innocence (because the accused is innocent until proven guilty by the prosecution). Their role predominantly consists of testing the evidence that the prosecution present, and ensuring that the prosecution has established each element of the offence to the requisite standard (beyond reasonable doubt).

    The discretion the DPP has at trial (for example whether or not to prosecute a matter and how to run a matter) is not without limitation. The Directors Guidelines which exist in all states and territories, set out, among other things, the duties owed by the prosecution, such as duty of fairness (to the accused among others), duty to be impartial, duty to ensure evidence is sufficient to support a chosen charge and the duty of disclosure.

    With crime (the detection of, prosecution of and desire of society to be ‘safe from’)
    at the forefront of the minds of most, criminal law is a hugely satisfying, interesting and challenging area to work within, and which has real application to the world we live in. Whilst presenting perplexing issues on a daily basis of everything from fairness and the purpose and success of punishment to accepting that degrees of loss are the only ways to measure the differences between victims and offenders, criminal law offers the lawyer an environment like no other. To be able to see, and be a part of, the application of the law to the extraordinarily diverse masses that come before the criminal courts, is a privilege.

    I have never walked away from a court house feeling dissatisfied with my job nor the outcome of the matter (at least in a broad sense), and certainly never with a feeling of shame. A more accurate description would be one of pride and accomplishment.

    1. Tanjil, I was glad to hear your comments above. I must agree that a lawyer’s role is not to determine guilt. A defence lawyer does not try to prove innocence but rather ensures the circumstances of the accused are set out and the rules applied correctly.
      ——————————————-
      On the wider issue at hand, from the first unit of study in my law degree I have been told of the rule of law and how in fact person’s freedoms are secured under the law and I think people should be wary in criticising the life of the law and lawyers.
      Furthermore, I wonder whether the purported ‘dark-side of the law’ (the heavily criticised criminal lawyers, a supposedly failed adversarial system etc) is really just a product of the society which we have created. I think rather than blaming the lawyers, one should consider how society as a whole has become so cut-throat and dishonest that we have created a culture which provides the conditions for dark practices to thrive. It is not so much the defence lawyer subverting justice as it is a cut-throat society with people that expect frivolous law suits and want to fight so as not to be held accountable for their crimes.

  15. In every industry and profession we can find members who make their colleagues ashamed to be associated with their actions. Nurses are found near the top of the list of trusted professionals, yet their ranks are not immune to the terrible actions of members. Only last year a nurse was charged with murder after causing a fire at a Quakers Hill Nursing Home. The actions of one have not ruined the reputation of all.
    Lawyers are way down the trusted professional list. Is that because there more dodgy lawyers than we care to admit? Or is it just the nature of the profession?
    The heroic services of paramedics, firefighters, pilots and rescue volunteers top the list.
    I am just happy to see that as a future lawyer I will be considered more trustworthy than a footballer. They don’t even make it onto the list.

  16. I spent last week typing out transcript for cross examination of a trial in the magistrates court. I am not a court reporter. I work for a firm who needed the transcript done as the cross examination was long and the trial had been split up over weeks. Transcript is not available in magistrates court, we had to do this at our own expense (legal aid client and legal aid wouldn’t pay for transcript). I thought I would die of boredom. Two accused therefore two barristers questioning the same person… long and arduous. Same questions different styles.(also an interpreter was involved) Yes it was frustrating for the alleged victim, and yes he was getting angry and feeling victimised… but the barristers were clear, polite, thorough but not aggresive. They expected answers to their questions and a lot of the time they didn’t get them. Any time the barristers were close to losing their patience the magistrate stepped in, The prosecution objected if the need arose.

    What I heard was a system where “the players” were trying to make sense of a very confusing situation. Trying to establish who did what whether any crime had been committed at all. At the end of that week what I saw were some very exhausted barristers who had to go home and spend the weekend going over everything that had been said and prepare for the next witness. All for meagre legal aid rates… and most people would be suprised how low that is.

    But the client was appreciative. What she saw was someone trying to defend her for something, she believes was self defence. Maybe it was maybe it wasn’t. If in the pre trial stage the evidence had shown that there was no merit in running the trial and the evidence against her was strong, or her story was so fanciful to begger belief the trial would not have happened, she would have been advised to plead guilty. If she did not like that advise she would have to go somewhere else.. and she would not have got legal aid.

    There are too many times we hear stories about the system that fails because of the few unethical or money obssessed and it probably doesn’t come from those solicitors and barristers doing legal aid rate because they are too buggered to care.

    Most of the criminals we defend are people that haven’t paid their car registration or grown a few dope plants or got pissed and swiped a bouncer, or knicked a tv from a department store (not an easy act, still can’t work out how they walked out of harris scarfes with a plasma and not get stopped )

    There is a heirarchy in the system in more ways than one

    But more significantly ….. if the system in Family and Criminal law is in such crisis and the shame of the barristers is such an issue then why is it that the most complaints that come through our local Legal Practitioner Conduct Board relate to Wills and Estates and Commercial law?.

    And why is that by far the most claims against legal practitioners that are succesful actions are in the area of commercial and civil law….and the least claims are criminal and family?

    1. Hi Claire,
      I loved your post, but I may have an answer for you re your last 2 paragraphs.

      1. Criminal law – as you would be aware, the appeals process is available to those found guilty – but only at the discretion of the Court and only as a matter of legal principal. Many lawyers don’t sue other lawyers – it is costly, time consuming and if their action fails their client is counter sued and/or an Order for costs is awarded against them. It is too risky and a former client tends to be far too concerned with appealing their judgements than running after an incompetent attorney.

      2. Family law – the primary concerns are finances and time. Family law matters are amazingly expensive. I witnessed my own parents divorce and my mothers bill (and it was only 2 years of representation) cost over $250,000; another is my husband’s divorce and child matters, after 6 years (to date) has topped the $250,000 benchmark. After divorce proceedings people (in the main) just want to get on with their lives. They are emotionally and financially drained and just want the whole experience over with – its a form of Stockholm syndrome. I have worked for many years in Family law. There is the belief that lawyers protect lawyers and you need only look to history to see why – ie the protection of criminally complicit judges and lawyers – former NSW Supreme Court Judge David Yeldham, [names edited out due to possible defamation concerns] to name just a few.

      Just because clients don’t complain doesnt mean that there is nothing to complain about. It is these clients (and every client) that we should be bound (and strive) to provide justice for, honestly and with integrity, not just represent.

  17. article? what article? i got so distracted by the photo of matthew mcconaughey at the beginning that i did not even realise a serious conversation was going on below that! 🙂

    however, having worked in the community development field for twenty years in 3 different countries, nothing shames me more than people (any person) closing their eyes to so many wrongs. successive governments in south africa, nz and here in oz contribute to a system that put people in the place where they need more and more criminal lawyers. i am no bleeding heart liberal by all means, but any country who underpays its teachers and nurses while overpaying big company execs and senior government officials is playing russian roulette with its own future, because it is eroding the base of a strong and functional society.

    in my first year of law school i thought human rights law would be my thing, but then i realised i am a migrant myself and coming from africa i would not be able to look at any case objectively. so that is out as a career choice.

    family law was never even an option because i have two little kids myself, however, i started working at a law firm in an admin role earlier this year and family law does not seem so scary anymore now that i know more of what it entails, so shaune is right on that front. i am looking forward to doing it next semester.

    i am hoping to specialise in employment law, because it is there where the nexus lies of a life missed out on education, health and social opportunities, in my humble opinion.

    when i started my degree in july 2009, stephen barlow said to us: “ask yourself every day why are you becoming a lawyer.” i agree. and i do.

  18. Self checking is an essential part of being a person, not just a member of a profession. If the ‘shame’-gland has been activated, great! It means your self-check mechanism is working and it matters to you that you are behaving ethically and with integrity.
    Conflict issues provide the rub that can tend to loss of integrity (look to the blurring of ethical behaviour post 911 from Governments usually staunch ‘defenders’ of human rights).
    Lawyers operate constantly in conflict areas so pressure is constant to weave that fine line between ok and maybe a bit dodgy. Grey is the new black but no-one likes grey.

    Regardless, each of us is part of the same great whole of society. The broken families have to find a way to work together, the criminals will eventually be released and living next door to us. Perhaps Ken is right, and adversarial is not the most useful for integration. Perhaps some kind of restorative justice approach might be a more helpful approach. Expensive and time consuming and not as palatable on the election trail where black and white is the go.

  19. On Claire Howie’s comment (and see Rhiannon’s response), another reason why one may not see many instances of counsel being sued in criminal and family matters is the so-called advocate immunity (Gianarelli, D’Orta-Ekenaike) hich makes it almost impossible to sue a barrister for what happens in court (even assuming that an opponent or opponent’s witness could sue counsel even without such an immunity).

    As for the proposition that the absence of professional misconduct findings against counsel for excessively aggressive cross-examination somehow establishes that such conduct does not occur, in general such conduct probably would not fall within the professional conduct rules in most jurisdictions e.g. the NT Rules.  As long as counsel does not positively KNOW that a highly prejudicial allegation he/she puts to an opposing party or witness in cross-examination on client instructions is actually false, it is not professional misconduct to ask it.  This is why I am suggesting the additional safeguards outlined in an
    earlier comment
    .

    That said, it’s clear that only a minority of counsel behave badly.  Most are unfailingly polite to witnesses, even ones they have every reason to suspect are lying through their teeth, and most judges will pull up counsel in the relatively rare cases they go too far.  Nevertheless in my experience abuse occurs sufficiently often that the additional safeguards I’m suggesting should be considered.

    That leaves open the question of why lawyers so often get fixed with the “liar liar” label.  I suggest part of the reason is that disgruntled losing litigants will often be looking for someone to blame other than themselves for the fact that they lost the case.  It’s just human nature, and usually the opposing lawyer is the most convenient target.

    Another reason is a very common misconception as to the role of lawyer advocates and the reason and need for it.  That misconception is encapsulated in the response of economist Paul Frijters reproduced in an earlier comment:

    Yes, the ‘arguments for sale’ bit is shameful. Plenty of that in economics. The economists writing reports to support the recent media blitzes for the mineral council or the tobacco industry probably had to keep their noses clenched and keep their minds on the money. It is worse than prostitution because that at least is a desired service without obvious third-party loss.

    But the analogy between lawyer advocates and economists doing consultancies for the private sector is a false one.  There may well be a problem with an expert as a “gun for hire” because they are trading on their expertise to give a (possibly) misleading impression of objectivity while in fact being subject to obvious pressures to tailor their report to fit the expectations of their client.  By contrast, the very JOB of a lawyer advocate is to act as “mouthpiece” for their client’s wishes and interests.  No-one would think the lawyer is doing anything else, and the job of representing and expressing a client’s wishes and interests (subject to avoiding actively and knowingly misleading the court) is a critical and necessary part of a fair trial, the presumption of innocence etc.

    In contrast to the question in the title to this post, I’m PROUD to be a lawyer.  It would be surprising if it were otherwise given that I’ve devoted almost my entire working life to being one and then teaching others to be good and effective lawyers.  However, in my view a significant part of being a good, effective and ethical lawyer is to be self-aware, self-critical and be willing to engage in constructive criticism and analysis of the profession itself  and its rule, governance, culture and assumptions where necessary.  I think the discussion on this thread has been a positive and constructive thing for those reasons.

  20. What an interesting article. I can certainly see where ‘Private Law Tutor’ feels shame within her profession. I too get the snide comments about my decision to study law – ‘what do you want to be ‘one of them’ for?’ and yes the obligatory ‘nice people don’t become lawyers’. But is this what drives us on? Do we, the people who take such comments to heart, then atempt to be ‘better’ lawyers or future lawyers? Is it possible that there may be some kind of a ‘generational shift’ in the attitudes of future lawyers in relation to what is ‘okay’ and ‘not okay’? With this type of public discussion, one can only hope that the ‘bad’ within the law fraternity is reduced but as we all know it can never disappear as there is ‘bad’ within every profession. So perhaps we can wear our ‘shame’ with pride – pride in knowing that the ‘shame’ we carry may lead to improvements within the ‘system’.

  21. Very interesting article Ken.

    As a first year, I am still feeling overwhelmed and nervous about being a lawyer…. however, extremely excited as the same time. I have to admit, I am challenged communicating with teenagers as well and they have certainly have changed since I was one a few years, so I think a bit of goal time maybe good for some of them in my town.

    However, what I struggle with or I suppose what annoys me the most, is being asked by police officers that come into my work which ‘side’ I would like to work on? As fair as I was concerned a person is innocent until proven guilty, irrespective of the evidence against them. .

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