Maybe that’s so when it comes to civil practice, but I’m just not seeing it with criminal.  This is the sort of assertion that feeds the paranoia of the tort reformers and the lawyer-haters, who believe that there is some cabal to keep the honest man down while the lawyers take over the world.  If only…

To say that people who think like lawyers favor a lawyerly approach is hardly damning.  If we didn’t believe that there was something beneficial to thinking like a lawyer, we wouldn’t do it.  But non-lawyers have a gross misunderstanding of what thinking like a lawyer means.  It’s a systematic analysis of situations from a detached point of view.  Are most lawyers unnecessarily constrained by thoughts of precedent, with a good dose of stare decisis tightening around their neck?  Sure, but that’s a problem of vision that all people suffer.  They just can’t get beyond the box.  It’s true of lawyers, accountants, architects and especially engineers,

Other professions look for elegant solutions. It is the rare engineer, software designer or plumber who chooses an elaborate fix when a simple one will do.

What a load of crap.  A fix is a fix, and it’s as simple or complex as it needs to be do accomplish the task.  Plumbers fix things the way plumbers fix things.  Lawyers do the same.  Does this argument have more to do with a higher expectation of lawyers than plumbers?  Are we to overcome our training as lawyers to start thinking as plumbers?

Belying the point is Liptack’s consulting Lester Brickman, ethics professor at Cardozo Law School and someone who can ALWAYS be counted on the screw the lawyer no matter what.  I’ve always admired how good old Les, who gets a paycheck whether he does anything useful or not, can find a way to castrate the working lawyer and conclude that he’s unworthy of the ability to make a living.  Full Disclosure:  I don’t care for Lester Brickman.

But as I said earlier, don’t even begin to sweep the criminal defense lawyer into this mix.  I highly doubt that Judge Jacobs was thinking about us when he made his comments, since few Second Circuit judges give us much thought to begin with.  The only instance cited by Liptack in his column is that line in the Miranda warnings that informs arrestees that they have the right to an attorney.  Note to Adam:  Miranda was decided in 1966.  If you can’t come up with something more recent, there’s a reason.

So if judges have this bias in favor of lawyers and the legal process, as Judge Jacobs says, then I’ve got a list of things that they need to address:  How about we start with requiring the Government to disclose Brady (exculpatory evidence) and Giglio (impeachment evidence) up front.  Let’s allow Bills of Particulars in federal criminal prosecutions on a regular basis, even though it will “prejudice the Government” by disclosing the basis for the charges.  What about getting rid of the 412 exceptions to the 4th Amendment’s exclusionary rule and start applying the exclusionary rule.  Why not let lawyers voir dire federal jury panels instead of judges? 

There are a bunch more where these come from, but we can start small and eventually get to all the things you judges are biased in favor of.  What?  You’re not going to start making wholesale changes to help out criminal defense lawyers (not to mention the People) like Adam Liptack says?  But Your Honor, if you can’t trust the Times, who can you trust?

And in closing, let me say that Lester Brickman can bite me.  As far as I’m concerned, let him try to practice law before his venal attorney self-loathing should ever be given public airing.