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Volume 26, Number 4 (1996) reprinted by permission University of Memphis Law Review The Burden of Truth: Reconciling Literary Reality with Professional Mythology AMY R. MASHBURN*, DABNEY D. WARE**
abandon it forever. For many non-lawyers, this ending may simply confirm their suspicions that law has become the Babylon of the professions. Lawyers, on the other hand, are likely to view the detached descriptions of legal culture by successful novelists more suspiciously. After all, writers purposefully manipulate images to sell novels, and readers have an insatiable appetite for melodrama. The Rainmaker, however, merits closer inspection by lawyers for a number of reasons. Grisham is a fellow lawyer and legal insider who has taken on a topic for which he appears to have considerable passion and genuine concern. Moreover, the author's subject--the plight of a poor client who has a meritorious claim, an underfunded case, an inexperienced lawyer, and a wealthy and powerful corporate opponent--presents fundamental and imperative issues for anyone concerned with structuring a fair and equitable system of dispute resolution. Intellectual elitism and professional skepticism, however, instruct us to be disdainful and mistrustful of literary images like these because they emanate from popular culture. On the other hand, resisting orthodoxy about where truth resides often yields intriguing and useful insights. That possibility is a compelling reason to take a longer look at a fictional depiction of the desire shared by many lawyers to "never voluntarily set foot in another courtroom."3 Although the book is somewhat exaggerated and necessarily stylized, it is, nonetheless, a relatively accurate, and therefore troubling, account of a civil lawsuit. That discovery is not unexpected, but the contrast between Grisham's depictions of the legal community and the litigation process, and those of other legal insiders is quite startling. When bar organizations, legal scholars, and legal educators describe the problems plaguing the legal profession, their visions of lawyers and lawyering are very different from Grisham's and rarely ring completely true. Their characterizations tend to be devoid of or inattentive to the sources, manifestations, and effects of power and self-interest among lawyers and their clients. Either they do not perceive or they are purposefully resistant to acknowledging, the relationship among those attributes, escalating misbehavior, and widespread dissatisfaction with the practice of law. Conversely, The Rainmaker evidences a sophisticated and precise understanding of the cause and effect dynamic of professional misconduct and its less apparent consequences. Informed by that knowledge, the novel manages to capture a pervasive and definitive sensibility--an awareness that suffuses the working lives of lawyers, but is strangely absent from more authoritative texts. This lack of acknowledgment and diminished professional self-awareness are troublesome because they produce an undermining collective hypocrisy. Reconciling these conflicting and incongruous images is an extraordinarily difficult and alienating experience for many lawyers. Unfortunately, law schools and the legal community provide lawyers with very little assistance in coping with the profession's harshest lessons. Many lawyers like Rudy do not survive their initiation intact, and Grisham's work suggests that this phenomenon, rather than the public's low opinion of lawyers, is at the heart of the so-called professionalism crisis. review leads to a higher status job than one's less fortunate peers will obtain. "Law Review types are important students who take themselves much too seriously. . . . Almost all are headed for either big firms or federal judicial clerkships."6 Rudy never aspired to their status because of his low social class, signified by his short, unadorned name,7 and mediocre academic ranking "somewhere in the top half of his class."8 He is pleased to secure a job with a "stuffy little sweatshop of a firm" comprised of lawyers who once worked for large, prestigious law firms.9 Many of his classmates, however, are forced to take the "jobs they didn't tell us about when we started law school" and "work as assistant public defenders and assistant city prosecutors and low-paid clerks for underpaid judges."10 The most unfortunate fear their fate will be to complete "seven years of college, and be unemployed."11 In that eventuality, these students believe they would "become something much worse than a struggling student[,] . . . a casualty, a statistic, another law student who's fallen through the cracks of the legal profession."12 Rudy quickly learns that succeeding in law school is not only a competitive sport, but is also a zero sum game. At a time when he believes he has a job with a respectable firm, he dreams of arriving with "a client worth at least twenty million [and becoming] an instant rainmaker, a bright young star with a golden touch."13 He loses this job (before he begins it) and, in his own mind, immediately becomes "the last thing this profession needs--another hungry young vulture roaming the streets, scavenging for litigation, trying to make something happen so I can squeeze a few bucks out of broke clients."14 Students who win the law school game are richly rewarded, and the losers are left to scramble for a few remaining crumbs of employment. Not surprisingly, law students' preferences replicate the prestige rank ordering of available jobs by lawyers. At the top of their hierarchy are "the large[], stuff[y], most prestigious and wealthiest firms in the state."15 Beneath these firms are the specialty or "boutique" firms like "Brodnax and Speer . . . a firm with fifteen lawyers who do little else but represent insur- ance companies in litigation;"16 his friend Booker's civil rights litigation firm (where "there are twenty-two lawyers, all black, half female");17 and firms with lawyers who are "in their mid-thirties, . . . friends in law school, . . . [former employees] for big firms around the city, who grew dissatisfied with the pressure, then reassembled themselves here in a quieter practice . . . and do everything, from divorce to real estate to zoning, and of course" personal injury.18 Successful small firms dominated by individuals occupy the next rung on the ladder. Jonathan Lake, Rudy's de facto first employer, is a member of this eclectic group. He "still works eighteen hours a day, owns a firm with eleven associates, no partners, tries more big cases than any lawyer around and makes, according to the legend, somewhere in the neighborhood of three million dollars a year."19 Included in this category is Bruiser Stone--yet another employer of Rudy--who advertises his criminal intentions and professional status via office decor which includes "one wall . . . reserved for firearms, all sorts of rifles . . . muskets and awards for sharpshooting" and "a large, elevated aquarium with what appear to be miniature sharks gliding through the murky waters."20 The base of the status pyramid is the shadowy domain of a populous professional underclass comprised of the rest of the "three thousand lawyers in the city, most [of whom] are either sole practitioners or in two- or three-man firms."21 Its residents include criminal defense lawyers, most prosecutors, low-level employees of government agencies, family law lawyers, debt collectors, and those who probate small estates. After Rudy's peripatetic stint as an employee, he forms his own firm with a non-lawyer partner, "paralawyer" Deck Shifflet. This alarming partnership, formed and operated in violation of the ethics rules, has a poor clientele. Because Rudy had no safety net (like family money or connections), misfortune rapidly transforms him into a bottom-dweller and legal untouchable. Sociological profiles of non-rural law practice would add little to this fictionalized description other than to make the rank determinant at work more apparent. What these studies show is that the power, prestige, and wealth of lawyers is dictated by the status of their clients. Those who represent collectives (corporations and other entities) are at the top of the hierarchy; those who represent individuals are scattered below. As the authors of one of the most influential of these studies have explained: [T]he prestige accorded by the legal profession to the fields of law, constituting a set of distinct lawyers' roles, is determined in large measure by the types of clients served by the fields. Fields that serve corporate, wealthier, more "establishment" clients are accorded more deference within the profession than are those that serve individual, poorer clients. This suggests the thesis that prestige within law is acquired by association, that it is "reflected glory" derived from the power possessed by the lawyers' clients.22Predictably, Rudy internalizes and legitimates this caste system. After he falls off the status ladder, he develops a painful love/hate relationship with large, prestigious law firms.23 He observes the tall buildings of downtown, wondering what's happening up there in countless firms: associates scrambling about, working eighteen-hour days because the next guy is working twenty; junior partners conferencing with each other about firm strategy; senior partners holding forth in their richly decorated corner offices as teams of younger lawyers wait for their instruction.He believes these firms are where the best lawyers do the most important and challenging legal work, for high compensa- tion, and in luxurious and genteel circumstances. Even after those whom he admires so much reveal themselves to be far less than they appear to be, the effects of his brutal socialization linger. He sarcastically remarks, "Gee, I'd love to be an important bankruptcy lawyer so the gals [at the court clerk's office] would call me Fred or Sonny."25 He feels diminished by the knowledge that not much separates him from these low class lawyers whom he now regards as inferior. "The elevator is packed with lawyers, all badly dressed with battered briefcases and scuffed shoes. . . . [And Rudy laments that] in all likelihood, I'll be just like them, loose on the streets, trying to squeeze fees out of people who can't pay, hanging around courtrooms looking for business."26 He describes a group of lawyers as doing "many sleazy things, like full-color ads in the yellow pages, and billboards, and placards on city buses, and telephone solicitation" and projects his own loathing by speculating that these lawyers must "ignore the stench of what [they are] doing, ignore the snubs and snobbery of big-firm lawyers, because it only takes one [big win]."27 He judges himself harshly for his desperate effort to get a job with this firm, and with bitter self-recrimination, notes that his "only concern is whether or not he can talk them into employment . . . and cannot believe" what he is doing.28 The heart of this story is Rudy's discovery that if he were one of the privileged downtown lawyers his behavior would likely shock and distress him even more. His clients would be like Great Benefit, the insurance company he ultimately sues on behalf of claimants, Dot and Buddy Black. According to Grisham, these businesses are "a bunch of crooks. . . . big corporations [who run] roughshod over little people"29 driven by the credo that "no dollar is too trivial to connive for."30 They routinely engage in "egregious behavior[,]" secure in the knowledge that their victims are powerless to stop them.31 The working class and poor people they prey upon cannot afford attorneys unless, like Rudy's clients, they find one willing to take a consumer case or insurance claim on a contingency fee basis.32 Corporations, on the other hand, are able to pay attorneys by the hour to vindicate their rights or to defend them. Big businesses "have lots of money to hire lots of lawyers," and their lawyers have very high hourly billing rates.33 Consequently, law firms have a financial incentive to have as many lawyers as possible billing to a client's account, to delay proceedings, and to create work for themselves.34 They "will file every motion known and many they invent, all with thick supporting briefs."35 While this method may be (as one of Grisham's characters concludes) "a rip-off" of wealthy clients, it also clearly benefits them by making it extremely "painful to sue big corporations."36 For consumers, insurance claimants, tort victims, and their lawyers, the "problem is [these firms and their clients will] run you ragged in the process" and pre- vent meritorious claims from reaching trial.37 Predictably, the high status lawyers in The Rainmaker do not function as any sort of check on their clients' fraudulent, illegal, or immoral behavior because these attorneys are concerned primarily about being paid, are ideologically predisposed to maximize their clients' interests, and are, for the most part, in political and social alignment with their clients.38 Conversely, clients of low status lawyers (mostly individuals) are more susceptible to their lawyers' manipulation. This is particularly apparent when a defendant offers to settle a contingency fee case. Rudy resists the temptation to pressure his clients to accept an offer of settlement and is "surprised at his ability to ignore the money."39 His reasoning, unfortunately, is less than reassuring: "It's tempting, to be sure, but I'm not consumed with it. I'm not starving. I'm young and there will be other cases."40 Some express acknowledgment of the ethical principle that settlement decisions should be made by clients would have been more encouraging. Finally, lawyers do not possess perfect knowledge of the extent of their clients' wrongdoing. Consequently, when they are in trouble, attorneys, like Great Benefit's counsel, often claim that clients have victimized them by "hiding things from their own lawyers."41 Overall, Grisham depicts the relationship between large law firms and their corporate clients as a malignant symbiosis. Most of the inhabitants of Grisham's legal world are caught up in their quest to acquire and retain money and power. This lesson is not lost on Rudy who contends that, "if lawyers earned the same salaries as schoolteachers, they'd immediately close nine law schools out of ten."42 Hostility and competition permeate every level of life, and it often seems that the ranks of lawyers have broken out in something akin to class warfare. Rudy himself "plays heavy on what he hopes is [another lawyer's] dislike for big firms. It's a natural rivalry, the little guys . . . , the ham-and-egg street lawyers, versus the silk stocking boys in the tall buildings downtown."43 Rudy also discovers that not only are the guys downtown not what they seem to be, but that there is a clear connection between their need to appear to be something other than what they are and their ability to retain their high status. To be part of the upper echelons of legal practice, one must obscure the importance of profit, maximize the interests of wealthy clients, engage in anti-competitive behavior, and perpetuate the myth that very high fees guarantee high quality legal representation. Grisham's depiction of the prevalent practice of cloaking cutthroat competition in hypocrisy is Brechtian: "What does a man live by? By resolutely Ill-treating, beating, cheating, eating some other bloke! A man can only live by absolutely forgetting he's a man like other folk!"44 Rudy's experience suggests that the tendency to obscure the flaws of high status lawyers is quietly devastating the profession and its ability to serve clients. It is not clear, however, that Rudy realizes the extent to which his self-loathing and its undermining effect on his assessment of his representation of the Blacks have been produced, manipulated, and maintained by these divisions and conflicts within the legal community. The most troubling manifestation of this is that his success was not enough to overcome his desire to flee the legal profession. These damning images exclude much, but many would find them essentially accurate. For the most part, bar rhetoric45 presents an entirely different explanation for low morale in the legal community, often called the "professionalism crisis." According to the organized bars, most of the profession's problems, both of image and in reality, are caused by low-class lawyers: personal injury attorneys, criminal defense lawyers, and inexperienced, greedy, or incompetent youths. The cumulative effect of their bad behavior is an alleged erosion of professionalism. Lamentations that law was once a profession, but is now just a business have become a pillar of the bar's professionalism orthodoxy. This diagnosis presupposes that the practice of law in some other time was not, or for a significant number of attorneys practicing today is not, largely about making money. A manifestation of this essentially elitist analysis is a frequently cited explanation for widespread attorney dissatisfaction. According to the rhetoric of professionalism, lawyers make a lot of money, but are unhappy because the nature of law practice in these times stymies their altruistic urges and non-monetary professional goals.46 This view does not acknowledge that dissatisfaction may vary depending upon a lawyer's socio-economic class before entering law school, expectations of betterment, and experiences after graduation. Professor Geoffrey Hazard has observed that "most lawyers dissatisfied with the profession are ones who have moved downward in the world as they envision it . . . They came from professional or managerial families in which they experienced psy- chological security, affluence and high social status."47 Simply put, there are not enough high status positions for the number of lawyers who believe they are entitled to have them. The prevalence of dissatisfaction may, therefore, be attributable, in part, to the profession's slipping collective class status, the proletarianization of law practice.48 Lawyers from lower socio-economic classes who have successfully used law practice to elevate their station in life may be reasonably satisfied because, as Professor Hazard opines, "for them, the evils in contemporary law practice correspond to evils of ordinary life, except that they are not as bad."49 A large number of lawyers, however, fall into a third category--those who are from lower socio-economic classes prior to law school and are unable to elevate their status after they graduate. Rudy is characteristic of this group, which is often excluded from analyses of attorney dissatisfaction. Rudy entered law school with the vague idea that he would probably eclipse his family's station in life, but afterwards found his expectations of betterment thwarted. Although it is true that attorneys are, in general, well-compensated, the gaps between the pay of those who work in large, urban law firms and the rest of the practicing bar is enormous.50 For many lawyers, the practice of law is an economic struggle, and they are not, and never will be, members of the upper-middle class. Dashed hopes and dreams also produce dissatisfaction. Comparing Grisham's literary images with bar orthodoxy makes clear that speaking about the legal profession as a distinct, unified professional class is a questionable and perilous undertaking. When an atypical, privileged few (urban, corporate lawyers) are deputized to speak for a diversified and divided profession, the results are likely to be elitist, hypocritical, and non-responsive to the majoritarian will. The American Bar Association's legislation and leadership manifests precisely this type of bias. Among other things, they avoid true consumer-oriented reform in favor of largely symbolic ethical and civility codes and advocate imposing noblese oblige-style pro bono obligations on lawyers (but approve of programs that allow lawyers to buy their way out).51 Rare indeed is the bar leader, partner in a prestigious law firm, or member of an American Bar Association committee or commission who declares "I have a professionalism problem--I can't stop doing what benefits my wealthy clients." Unfortunately, the best interests of clients (which include, among other things, lowering legal transaction costs) are often lost in the stampede for money and prestige. Bar leaders are quite relentless and militant in their advocacy and implementation of this professionalism agenda. The Rudys of the bar are told that they either buy into the prevailing mythology or become part of the identified problem, that is, unprofessional lawyers who are spoiling law practice for the rest of us. Opposing points of view are rare and unwelcomed because the "law has become a business" bromide has hardened into professional orthodoxy. Absolute truth, of course, is not to be found in either Grisham's imagery or bar rhetoric; both are somewhat distorted, exaggerated, and underinclusive. What these views share is a palpable and sincere longing for the legal profession to be a source of sustaining values and to provide a meaningful conception of self in a modern, relativistic, diverse society. In the final analysis, however, Grisham persuades that for lawyers like Rudy, the legal occupational community is false, dangerous, and more likely to stifle than to support or encourage. Some theories of group behavior would suggest that individuals, rather than artificially contrived collectivities (such as the legal profession), must be the source of radical, redemptive, moral action.52 We turn next to an exploration of why it proved so difficult for Rudy to find this form of sustenance within himself. This presumed connection among prestige, good manners, and ethical behavior soon reveals itself to be fictitious. Rudy's illusions are shattered when he discovers that virtually everyone violates ethical rules and norms. In addition to the conduct that Grisham attributes to large law firms, detailed in the preceding section, the lawyers in The Rainmaker conspire to steal one another's cases, breach agreements, and, generally speaking, have great difficulty keeping their clients' confidences.57 Nowhere is this discrepancy between image and reality more apparent than with Drummond. He initially appears to be "quite the gentleman, . . . [but is soon] pouting [like a] sophomore."58 This highly-respected lawyer forgets his manners and, in short order, reveals himself to be capable of stunts that range from the juvenile--attempting to disrupt depositions by "picking a meaningless fight, then storming off in a huff"--to the criminal--wire-tapping opposing counsel's telephone.59 Rudy's transgressions are for our purposes even more significant than Drummond's. Grisham depicts Rudy sympathetically; he is young, inexperienced, and operating without a safety net, but his heart is in the right place. In the beginning, he is neither evil nor corrupt, and throughout his ordeal, he displays a high level of self-awareness and a capacity for self-assessment. Nevertheless, he fails almost every time he is tested ethically. After his bankruptcy, Rudy arranges it so that he gets paid in cash and participates in a scheme with his employer to "screw[] the government."60 Later, without apparent guilt, he "danced around the questions on [a loan] application dealing with prior bankruptcies."61 He also enters into contracts with clients before he is admitted to the bar, practices law without a license, assists others in the unlicensed practice of law, solicits clients improperly, and implies to the Blacks that he is able to file suit on their behalf when, in fact, he is not.62 Almost as a literary afterthought, Grisham tosses in a homicide. Rudy kills his married girlfriend's violent husband and lies to the police about it.63 Through Rudy's ethical downfall, Grisham shows how rank-based assumptions and hypocrisy generate disillusionment and, ultimately, corruption. Legal ethicists do not reliably put their readers on notice of how tempted, capable, and inclined each of us is to cut ethical corners and break rules. Regulators and ethicists assume external forces will compel, encourage, and reinforce rule-abiding behavior. They trust that only identifiably "bad" people violate ethical restrictions, hurt others, and undermine the system. They downplay or ignore the need for vigilance and resistance to the compromised, diminished, and contaminating moral norms of the legal community. Depending on one's point of view, either Rudy reveals himself to be corrupt under the pressure of practicing law, or the pressure of law practice corrupts him. Either way, he slips easily into a fight-fire-with-fire, or the-ends-justify-the-means, mentality.64 He demonstrates an unquestioning and, therefore very alarming, willingness to engage in the exact sort of behavior that distresses him most in his privileged opponents. For example, during a deposition, Rudy has a little fun at his opponents' expense and thinks gleefully to himself, "I can get by with this because the judge is my buddy."65 In other words, misusing power and influence is acceptable--even heroic--so long as you are not the victim. Perhaps the most distressing manifestation of Rudy's degradation, oddly enough, is his somewhat charitable assessment of Drummond. This lawyer engaged in truly egregious behavior and never showed any signs of doing the right thing until he was brought to his knees by a court of law. At one point, Rudy says of him "but it's not Drummond's fault. . . . He just happens to be the nearest person to hate."66 At the end of the case, Rudy is almost sorry for Drummond.67 Maybe Rudy, a sinner himself, believes he is in no position to cast stones.68 Additionally, his low socio-economic class makes it more difficult for Rudy to cope with the disillusionment law practice inevitably brings and more likely to defer to higher status lawyers and to legitimate their questionable ways. In other words, if most of the misconduct he saw came from the Deck Shifflets of the world, he might be able to resist joining in. Class-based self-loathing and a desire to distance himself from the low-lifes might produce rule-abiding behavior. Alternatively, Rudy's attitude towards Drummond could simply be another ugly facet of professionalism: it is not wise to hold high status lawyers (from whom lawyers get referrals, prestige, and a sense of community) accountable for their behavior, or at least, not in a way that they or others know you are doing it. Regrettably, Rudy does not judge himself either. Instead, he offers rationalizations and excuses. He says he is "alone and outgunned, scared and inexperienced, but right," and if he does not play hardball, his deserving clients will lose in an unfair system.69 Rudy feels that resisting the urge to misbehave is futile and his complicity inevitable because others have power over him, like "Deck[,] who will think of a dozen ways around" his protests.70 He breaks the ethics rules because everyone else is doing it, and he is persuaded that he will be competitively impaired if he does not.71 Finally, he employs the ultimate rationalization: "I'm guilty, but my little sin pales in comparison with Drummond's despicable act."72 Rudy is focused almost exclusively on survival and never contemplates what the world would be like if almost everyone (not just lawyers at the "clearly evil" end of the morality/character spectrum) thought and behaved according to these precepts. Grisham, however, has thought about it, and the legal community he describes in The Rainmaker is that world. ics[,] . . . [placing such] great emphasis . . . on the subject, so much so that . . . [law students] assume[] the profession is zealous about enforcing a rigid set of guidelines."74 Graduates soon discover the depressing truth they do not teach in law schools: lawyers break these rules all the time and, mostly, nothing happens to them.75 Grisham makes it crystal clear that the ethical standards have no true operational vitality and are, for the most part, merely formal. His characters rarely express fear of censure in any form--from peers, bar disciplinary boards, or judges. While it is true that some of Grisham's characters use unethical means to accomplish morally desirable goals, their fight-fire-with-fire mentality produces a world that is virtually untouched by any sense of what the codified ethical rules dictate or the possibility of enforcement by the authorities. The only meaningful punishment is losing the case or the client; the rules simply do not matter--they are not real law. In contrast, legal ethicists spend much of their time analyzing and fine-tuning the existing rules, or proposing new (often permissive or symbolic) ones. They presuppose the vitality of the various regulatory codes and only tangentially address the causes of the de facto irrelevancy of these provisions to the day to day lives of most lawyers. The resistance of ethicists to focusing upon the problems of rule enforcement is, perhaps, a vestige of the liberal equation of discipline with conservatism, authoritarianism, and rule formalism. In any event, according to this implicit view, lawyers can be trusted with broad discretion to do the right thing, although they may need some guidance in the counter- or non-intuitive gray areas. In contrast, Grisham's lawyers simply cannot be trusted in this way. In their efforts to survive and prosper, they break the rules they know will never be enforced and pay very few penalties to their colleagues or anyone else for doing so. From Grisham's perspective, enforcement of rules by those with power is central to a morally correct outcome. In The Rainmaker, the morally correct outcome was a multi-million dollar verdict for the plaintiffs, the ruination of the defendant, and the punishment of the defendant's lawyers. The only thing that kept the powerful from devouring Rudy and his clients was more power--more specifically, the power that comes from appearing before a judge who is not hostile to the claim and who will enforce rules designed to level the playing field.76 An attorney who is not completely undermined by the superior resources of his opponents is, obviously, indispensable as well. Grisham's story accurately and subtly depicts the precise cause and effect dynamic of attorney misconduct and explains why it is so pervasive. Inevitably, the legal community fails Rudy and his own individual moral sense does not rescue him. He, like many other lawyers, breaks the rules of ethics, in part, because he has a financial incentive to do so. He does not hold himself or others accountable for this misbehavior. All lawyers are, in degrees that may vary according to socio-economic class and other factors, compromised by the contrast between law school ideals, the "real world" behavior of lawyers, and the lack of rule enforcement. Their natural capacity as individuals to resist demoralizing group norms and take radical moral action are suppressed. Collectively, lawyers are "in no mood to be reminded of how grave their sins are."77 In several instances throughout the book, Grisham's characters observe that students enter law school with idealistic, altruistic, and noble aspirations.79 As Rudy's friend, Booker, the civil rights lawyer, says they want to be lawyers to "[s]erve the public, fight injustice, change society."80 We are told, however, that the totality of the law school experience soon pummels this idealism out of its students. Instead of encouraging and reinforcing these impulses, law schools actually undermine students' efforts to use their licenses to better society. "[A]fter three years of brutal competition [the students] care for nothing but the right job with the right firm where [they] can make partner in seven years and earn big bucks."81 But Grisham's imagery works a different result at a less superficial level. There, the complexities and subtleties of the truth emerge. First, as Grisham makes clear, law students begin to manifest competitive and selfish behavior shortly after they enter law school. They "can feel the competition . . . [, are] terribly concerned with each other's initial progress . . . [and] silently hop[e]" others fail because that is what others are silently hoping about them.82 Grisham admits that many students come to law school "having already mastered the art of dirty tricks."83 This suggests a more nuanced explanation for the loss of idealism--maybe it never really existed in many students in the first place. After all, young students with relatively little work experience easily maintain ideals while they are in school, where taking a stand primarily means asserting principled beliefs about what others ought to do. When convictions are tested on the field of our own lives, is it really so surprising that we experience slippage between what we say and what we do? Grisham's law students display self-interestedness, a tendency to revert to (and replicate) the belief systems associated with their pre-law school socio-economic classes, and affirm the primacy of the drives for survival, security, and power. As portrayed by Grisham, law school is a microcosm of the real world, and thus is realistic, albeit brutish, training for law practice.84 Another example of Grisham's juxtaposition of a truism with its negation is his portrayal of Rudy's belief that law school is utterly ineffective legal training and, therefore, mostly a colossal waste of time. After three years of studying the law, the students know very little and "are afraid of the simplest legal problem." pose of grading them.87 Grisham also effectively uses inconsistent imagery to por- tray law professors. On the one hand, they are condemned as "teaching because they can't function in the real world"88 and diminished by Grisham's observation that they "never billed an hour in private practice."89 Rudy, however, finds one of his most valuable mentors in his "Communist" insurance law professor.90 He generously helps Rudy prepare every aspect of his case against Great Benefits, including document and witness preparation, legal analysis, and litigation strategies.91 Over and over again The Rainmaker demonstrates the centrality of good legal analysis to practicing law--a skill best taught in law school by law professors. Before Rudy graduates from law school, he says "[i]f I'd spent fifty hours a week for the past three years training under a good lawyer, then I would be a good lawyer,"92 but the rest of his short-lived career clearly refutes this. The practicing lawyers he encounters would not train him to be "good" in any sense of the word; instead, his mentoring and moral instruction comes from judges and law professors who are distanced from and not dependent upon law practice. Rudy's attitude towards law school and his professors is reminiscent of his love/hate, fundamentally ambivalent relationship with large law firms. Out of these tensions, conflicts, surface affirmations, and subsurface negations, truth emerges. Do legal educators echo these criticisms? Many do. Legal educators see many of the problems Grisham has identified and have offered some solutions. They suggest that students need more institutionalized opportunities to do pro bono legal service and other public interest work while in law school. They advocate the creation of more opportunities for participation in clinical programs and simulation-based learning experiences, in part because they contend these environments put students in practice settings and roles that more closely resemble the "real world" than the traditional curriculum. Some argue that we should devote more time to teaching ethics and require that the subject be taught pervasively, i.e., throughout the curriculum. These are good ideas and programs, but unfortunately, they do not begin to make a dent in the problems The Rainmaker identifies. Law school continues to train students to work in large law firms even though most lawyers do not practice in that environment. The traditional curriculum reinforces the belief that jobs in large firms are the most desirable because the law done there is more sophisticated and the lawyers are better. In the world of The Rainmaker, however, large firms are the major repositories of professional evil. The link between these value messages and the structure of legal education is close and incredibly resistant to change. The problem is not that law professors, who control legal pedagogy, are unfamiliar with or cannot function in the world of law practice. Rather, law professors are extremely vested in the perpetuation of a system that rewards their accomplishments (high grades and law review at prestigious law schools) and attributes (privileged and mostly upper-middle class). In this respect, their resistance to change is no different than the reactionary and anachronistic professionalism agendas of high status partners at large law firms. Grisham's work poses a dilemma. Rudy's is a survival story. Rudy responded well to change and uncertainty; he survived in a world where his financial success was not assured; and he was a fierce and competent advocate for a deserving client. He says of himself: I . . . survive[d]! I[] put in some hard time with Bruiser, and probably learne[d] much more about law than I would [have] with the boys in the buildings downtown. I[] . . . endure[d] the snubs and quips and put-downs . . . . I can handle it. [It made] me tough. I was a bit haughty not long ago when I was safe and secure . . . .93 How could this have happened given what has been said thus far about his training? Perhaps Rudy's successful transition from law school to practice on his own was largely attributable to non-law school causes, that is, he was lucky, resourceful, had a sense of him- self that was not tied to lawyering, and found good and willing mentors and advisors. Without a doubt these factors played a role, but Grisham also suggests something else. Many of the most useful lessons of law school are unintentional, random, and unstructured. Legal educators may not be able to claim any pedagogical credit for the result, but law school nonetheless manages fairly predictably to educate and introduce newcomers to legal culture. The resulting paradox may be that law schools succeed by accident. Grisham cautions us to question our certainty that we understand all that will be required to train students to work in all of the legal profession's many practice environments. Moreover, it is unlikely that we can accurately predict what these environments will be like in the thirty-year period that will comprise the working lifespans of the students we are training now. Ultimately, the task has always been, and will always be, complicated by the obvious truth that legal educators do not have control over human nature or the politics and economics of law practice. The important problem posed by The Rainmaker is how can we do more to keep the capable yet vulnerable Rudys from bailing out (in actuality or psychologically) of the profession. This is particularly important because of Rudy's socio-economic background, self-awareness, and capacity for self-assessment. Grisham suggests that a good place to begin is with telling the truth. To be a good man. What a nice idea! But there's the little problem of subsistence: Supplies are scarce, and the human being base is plenty. Who would not like a peaceable existence? But this old world is not that kind of place.94 For those who believe that Rudy's abandonment of the legal profession was pure melodrama, Jan Schlichtmann's response to the devastating and deeply troubling ending to his case might suggest otherwise. The attorney, "found himself unable to work on cases anymore. He decided to quit the practice of law and go to Hawaii."96 While swimming one day, he thinks "of swimming on until he could no longer see land . . . but then this thought turned on itself," and he swims to shore.97 He actually contemplates suicide; Grisham's fiction pales in comparison to the real tragedies of law practice. This fiction/non-fiction comparison suggests that the images which flow from sources that cannot be controlled by the tradi- tional purveyors of orthodoxy provide valuable new insights and confirmations of some old observations. Specifically, the organized bars might consider toning down the call to professionalism and diversify the factual base of their often hypocritical rhetoric. Why not acknowledge that most lawyers practice to make a living and structure a community ethos with that in mind? Other possibilities include institutionalizing a focus on assuring adequate representation, considering ways to reduce legal transactional costs, and viewing law practice as a service profession rather than a "calling." Legal ethicists should direct more of their attention to encouraging lawyers not to be parties to the misdeeds of others and try to identify more effective means of holding lawyers accountable when they are. In addition, the experts might consider advocating enforcement of the existing ethics rules and their elevation to the status of "real law." As scholars, we have some obligation to understand who people are, how they behave in groups, and what roles rules can play in encouraging certain behaviors. This is not to say that we should ignore lawyers' shared longing for something uplifting and unifying. They, like Grisham, are telling us that required compartmentalization of their personal and professional moralities is not working. Today, we define ourselves in terms of our membership in a occupational community and with reference to its values.98 It is important to pay attention to those values. Legal education, in particular, may be able to make a more meaningful contribution toward alleviating the bleakness of Grisham's picture. First and foremost, law schools need to recognize that we train most students for something other than employment with large corporate firms. Some educators have begun to think creatively about ways to encourage skills outside of the simplistic and economically unfeasible solution of providing more skills and simulation training. These efforts need to incorporate the knowledge that a life in the law is one of flux and the need for individual resourcefulness is a constant. Finally, as Professor Hazard has suggested, "perhaps both the bar and legal educators should try to project more realistic expectations."99 At a minimum, we should endeavor to explain to law students, in more structured and systematic ways, the reality that the legal community, collectively speaking, has absolutely no incentive to provide a new entrant with mentoring or assistance. Under the old apprentice system there was some incentive because, in return for the training it provided, the practicing bar controlled entry into the profession and imposed socio-economic restrictions to protect its image. Today, that system is gone, and even large law firms, which traditionally provided mentoring, have less incentive than they did in the past to train and nurture associates. Law school could do more to help students to understand the value of what all lawyers do and to ease their transition into the world of practice. Notwithstanding its ending, Grisham's story affirms that lawyers make a real difference in individual lives. We need to stress this to our students. In the final analysis, the moral of Grisham's story may be that because of the constancy of greed, self-interest, and power-differentials, we may not be able to change the world, but we can make things incrementally better by producing and empowering more lawyers like Rudy Baylor. Although he was ethically flawed, he was also a quick learner, skilled problem-solver, and an independent thinker who, at some point in his legal education, was exposed to the idea that the ethical rules exist (or ought to exist) to protect clients and that advocacy on behalf of consumers is a worthwhile endeavor. |
