Ryan M. Barnett Civil Litigation Law Blog on Lawyers.com

Wisdom, perhaps like religion, commends to us a path which is not always universal in its roadmap. But hopefully in its destination. Like most things, some wisdom is more credible than others. The wisdom passed along by one of the great lawyer Presidents of this country can be fairly described as universal and much needed in today’s legal environment.

My introduction to Abraham Lincoln’s thoughts on the practice of law was early in my career and lasting. Sitting in my first semester criminal procedure course, the Professor (who’s name I have long since forgotten) commented upon a particular piece of wisdom ascribed to Lincoln. The gist of it was that you shouldn't put something off until tomorrow if it could be done today. Seizing upon this principle in practice can be an undertaking for sure. How many times have each of us pushed something back because we were simply too overwhelmed to know where to begin.

The call for “professionalism” is unquestionably en vogue. Hardly a legal publication can be found which doesn’t decry aggressive legal practices as cancerous to our profession. But I would suggest that the real problems with lacking professionalism amongst lawyers are base and systemic.

Lincoln was unequivocal in his recommendation that we strive to be peacemakers and discourage our clients from litigation. But the economic realities presented by the expense of obtaining a legal education and maintaining a comfortable existence cannot be ignored. A lawyer emerging with a shiny new J.D. today can expect to be starting off in their professional lives with close to $100,000 in student debt. There are only so many big city jobs with salaries commensurate to absorb such staggering loans. Most new lawyers can expect to walk into jobs from Birmingham to Tampa at an annual salary of anywhere from $40,000 to $50,000. Throw a family in there and you better hold on tight.

What does all this mean in the context of Lincoln’s legacy? Well, what about discouraging litigation? Have you yourself observed or commented to colleagues that many cases are litigated these days because the lawyers don’t have a choice? Although it borders on taboo, the reality is that lawyers don’t have a choice but to take cases and litigate minor issues if their production demands require it. Are personal injury lawyers taking cases that would not have made it past the front desk thirty years ago? Are defense and commercial litigation firms filing unnecessary motions simply to capture billing? In looking back at the amount of pressure built against your own bottom line, you might wonder how this can be possible. Surely, none of the work each of us do is unworthy of the legal system. Right? I think if we as lawyers are honest with ourselves, we cannot help but acknowledge there are problems. The fact of the matter is that those cases which should not be litigated might not see the light of a courtroom if the lawyers that end up working on them were doing something other than practicing to pay off oppressive student loans and chase a lifestyle many of them simply overestimated.

What might Lincoln say today about the Bar’s role in protecting the public and itself? I think in looking back at many of the reply letters Lincoln sent to prospective law students (wherein he simply wouldn’t take the students on) we could conclude that Lincoln wasn’t overly concerned with making entry into the profession too easy. Can we honestly say that the bar is not being lowered if there is a saturation of law schools which are forced to reach closer to the bottom of the applicant pool to survive? Much as Lincoln told those students who wrote to him, get the books and do the work. If you rise to the challenge and enter the profession after attending one of a limited number of law programs, fantastic. If you don’t (or can’t), best of luck in your other endeavors. This is something physicians and dentists seem to understand.

The ranks of American lawyers are projected to soon exceed 1,000,000. Have members of the Bar truly taken efforts to understand the implications of this staggering figure? It is not that lawyers in and of themselves are bad or dangerous people. But lawyers do have a dangerous power. Tying companies and people up in the pecuniary and emotional drain of litigation is often underestimated.

The lawyers’ role is a sacred one. One that should be sparingly granted. Traditional ideas of supply side economics cannot be easily or conveniently applied in the context of our profession. Having too many lawyers is a lot like having an unoccupied mercenary army in the wings. What is the effect of this? Increased litigiousness in the population. Decreased ability of the lawyer to be selective. Lower pay amongst rank and file lawyers. Ah, and perhaps we come full circle now. Eroded standards of professionalism stemming from low morale and lawyer saturated driven litigation, neither of which will be corrected by well intentioned periodicals.

This suggestion does not ignore the fact that access to legal counsel is a lofty goal and one that should be embraced by the Bar. But not every case belongs in a courtroom. This observation can be tested by asking for nominal hourly fees in questionable cases that might otherwise be taken on a contingency fee basis. You would be surprised at how many disputes suddenly aren’t worth the expense (by way of disclaimer, I think that contingency fees are appropriate in many cases, are here to stay, and I make this point only as an illustration). Certainly there are those cases where paying even a nominal hourly fee is not an economic possibility and contingency fees are not practical. But much as I heard it explained by one Florida Supreme Court Justice, pro bono is a choice. We can make the choice as lawyers to identify those cases where assisting a member of the public at little or no cost is appropriate. Access to lawyers by some may be a byproduct of having too many lawyers in practice, but is it a byproduct that comes at an overall socially acceptable cost?

I am not making a call for the closing of law schools or the elimination of lawyers. Nor do I make these observations to be critical of my profession. While there are difficult days, I enjoy being a lawyer, the opportunity to help clients, and the varied intellectual challenges. However, I do believe that Lincoln might encourage us to consider fostering a smaller Bar. We as lawyers should consider what it really means when new or existing law schools begin cranking out increasing numbers of graduates each year.

As Published, in the June & August 2010 editions of the Escambia Santa-Rosa County Bar publication, Summation, and at www.ryanbarnett.com.

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