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Cross: Mark Bennett, Have Speech, Will Travel

Mar. 30, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Houston criminal defense and First Amendment lawyer, Mark Bennett, whose blog, Defending People, is one of the foremost criminal law blogs around.

Q. While everyone knows you now as the Texas Tornado, you had an “international” upbringing as a result of your father’s work for the government. What influence did that have on your perspective? Did you find your education to be better, worse, different, than that taught in the United States? Did growing up in other cultures make you see America differently than others?  And what about your father, who is one of the handful of truly great men to get married in a Dunkin’ Donuts? Did he, his work, influence your world view?

A. My education abroad (in Frankfurt, Bangkok, and New Delhi) was much better than I would have had, had I remained in the US. Aside from the superiority of the international schools to American public schools, growing up overseas exposed me to other cultures and to the fundamental sameness of people. Recognizing that sameness saves me a lot of work guessing what an adverse witness, or a judge or a prosecutor is thinking. Because friends would leave every year and new ones would arrive, my expat childhood gave me the ability to find rapport quickly with others.

While 9/11 “changed everything” for most Americans, I had long been accustomed to living with the threat of terrorism, and recognizing the difference between rational mitigation of that risk, and panic. America has been in a panic since 9/11; we’ve given the government permission to take away vast swaths of rights, all for a risk that is less than that of riding in a car or going to the doctor or taking in a show.

My Mom’s brother, Randy, was an Air Force pilot. Whenever Dad and Randy parted ways, one of them would say, “well, I’m off to fight communism,” and the other would reply, “it’s a tough job, but somebody’s got to do it.” So I have Dad to thank for my sense of duty: find a tough job that someone has to do, and do it. I could have gone to work for the CIA (I worked there a summer during undergrad) but Dad encouraged me not to subject myself to government bureaucratic chickenshit, but rather to work for myself.

Q. You did your undergrad at Rice, where you majored in religious studies, a rather curious choice. What the hell were you thinking? Was there a plan of action at the time? You then went to University of Houston for law school. Why law? Did you go in with the purpose of coming out to practice criminal law? Did you ever consider becoming a prosecutor, or was it criminal defense all the way? Is there something wrong with prosecuting?

A. I started at Rice as a Political Science major because that seemed like a natural major for my background and law-school aspirations. After seven semesters of that I looked at my GPA and realized that poli sci bored the crap out of me. The Religious Studies classes I had taken had fascinated me, so I had done well in them. I switched majors, took an extra semester to graduate, and finished with a 3.5 in my major. My overall GPA was still embarrassing, but I do really well on standardized tests, so I got into a good enough law school.

I’ve always been a helper and defender of people, looking for reasons for their behavior rather than condemning them. I went to law school planning to be a criminal-defense lawyer, but my 1L crimlaw prof made criminal law dry and boring. So I decided to be a civil lawyer and cash in. It took three summer clerkships at litigation firms to show me the error of my ways—nobody at those firms seemed to be having any fun.

Prosecuting is against my nature, but I cynically applied to the DA’s Office for the experience. My mentor, Jim Skelton, told me I could “get six months’ experience, six times over” at the DA’s Office. Fortunately the interview went about like you would expect, and I didn’t get an offer.

There is nothing wrong with prosecuting if you are the sort of human being who enjoys putting people in cages. I have nothing but compassion for you, and I hope for your sake that the universe is not just.

Q. When you were admitted to practice in 1995, you immediately hung out your own shingle. How did that work out for you? Was it what you expected?  What about your first trial? Was it a home run or strike out? Were you a star right out of the box, or did you have to pay some dues along the way?

I had certain advantages when I started out. Jennifer, my then-girlfriend (we have been together since 1992, and we’ll have been married 19 years next week), had a salaried job, so we weren’t in danger of eviction. One of my law school adjunct professors was feeding me contract research-and-writing work. Another was appointing me to criminal appeals. And most importantly, I had no expectations. My first trial was a qualified loss—it was a federal bank robbery trial, and my client was convicted, but he appreciated the fight I put up for him, and he wound up getting less time than he probably would have had he pled guilty.

I have seen very few naturally talented trial lawyers. Most, including me, have to work hard and study to be any good. I am a fairly smart guy, though, and most things that the naturals do intuitively I can, with some studying, reverse-engineer, duplicate, and sometimes even improve. This gives me the advantage of being able to pass on my skills to other lawyers—you can’t teach people to be naturals, but you can analyze and formalize what the naturals do, and teach the formalized methods. I’m inspired by Terry MacCarthy, who formalized cross-examination, with his “Look Good” cross.

Q. Among the aspects of trial that you’ve taken under wing is voir dire, where you came up with the 16 Rules for Jury Selection. What made you focus on voir dire?  You have great faith in the ability to select an impartial jury, whereas many (myself included) tend to consider it more voodoo than science. Why? What makes you think that with the right approach, lawyers can look inside the heads of potential jurors and figure out what’s going on in there?  Is this art, science, a mixture or just wishful thinking?

A. In cases where the lawyers get to conduct their own jury selection, cases are won and lost in that part of the trial. If, as I contend, jurors have made up their minds by the end of opening statements, so that the evidence is unlikely to change their minds, voir dire is the most important part of the trial. Juror research supports my theory, so I’ll call that part “science.”

It’s not about looking inside the heads of jurors, and an “impartial” jury is the next-to-last thing I want. What I want is jurors coming out of jury selection having thought of a possible theory of the case, which will match my story in opening statements. Orchestrating a discussion that allows the jurors to think of my defense is the part I’d call “art.” I am not an artist, but my 16 Rules are a good example of my learning how to talk to jurors, and then formalizing my method. A lawyer following my 16 Rules is less likely to get in her own way and block the discussion that will result in the jurors thinking of her defense. If you follow my 16 Rules and the jury panel doesn’t suggest your defense as a possible defense, it’s not a very good defense.

Q. You took a trip to a ranch in Dubois, Wyoming, where you attended Gerry Spence’s Trial Lawyer College. What made you decide to spend five weeks of your life there? Was it worth it? What did it do for you, for your trial skills?  Some have suggested that there’s something cult-like about TLC. Did you find it that way? When you were done, what did you take away that you didn’t have before?

A. I had had some exposure to the psychodramatic method as a tool for trial lawyers before going to TLC in 1999, but five weeks at TLC taught me a great deal more about the method and unquestionably made me a better lawyer. TLC was a great experience, and I recommend it to any trial lawyer.

That said, there are those who see the TLC way as The Way to try cases. There are cultlike aspects to their devotion. I recommend that lawyers go to TLC thinking of it as a gateway, rather than The Way. TLC should open their minds to the application of other “technologies” than psychodrama to trial lawyering: for example, improv, which I’ve been doing for eight years, and which is not only indispensable to my advocacy but also makes me a better psychodramatist.

Lawyers do not have a monopoly on the study of persuasion, and most of us are too tied up in day-to-day client concerns to make a concerted study of persuasion techniques. I am forming a “skunkworks” group of lawyers who are motivated to investigate the application of other technologies to trial lawyering.

Q. In 2012, you ran as the Libertarian candidate for the Texas Court of Criminal Appeals, losing to Barbara Hervey. What made you decide to run? Did you expect to win or was there a principle at stake? How did you do? Did you get anything out of it? Was it worth the effort?

A. I ran because the Libertarian Party needed someone to run, and it sounded like fun. I didn’t expect to win as a Libertarian, but there is no good reason for judges to be elected in partisan elections. It gave me an opportunity to think and talk about how I would improve the criminal justice system in Texas. My main platform planks were (and are—I’m running again this time): the Court of Criminal Appeals should hold lawyers on both sides to a higher standard; and the Court of Criminal Appeals should interpret the Texas Constitution as its authors would have, rather than follow the United States Supreme Court’s constitutional jurisprudence. For example, I question whether the Texas lawyers who wrote the state constitution in 1836 would have countenanced what we now call Terry stops, physical restraints on Texans’ movement without a warrant or even probable cause.

Q. Your law firm website has one of the best pages ever, Why You Shouldn’t Hire Me.  While so many lawyers desperately troll the internet for business, willing to say almost anything for a buck, you try to scare people away. Why? What does that say about your attitude toward the business of law?  What does that say about others, who will say or do anything to get a case?  You’ve never been shy about criticizing lawyers who engage in unethical conduct to make money. Why do you feel compelled to call out disreputable lawyers?

A. I’ve always been contrarian in my marketing. When I started my practice, I saw many lawyers advertising that they were former prosecutors as though that is an unqualifiedly good thing. I had never seen anyone advertise “never a prosecutor”—the dedicated criminal-defense lawyers were buying into the rhetoric. But “former prosecutor” is shorthand both for things that clients want (for example, trial experience) and for things that clients don’t want (for example, a desire to see people put in cages) in their criminal-defense lawyers, so I started advertising myself as “never a prosecutor,” and explaining the advantages of hiring someone who never put people in cages.

My Don’t Hire Bennett & Bennett If… page is similarly contrarian. Every day we are beset with marketers trying to sell us SEO, links, or leads. So many lawyers are so desperate for the phone to ring, but the truth is that most of the time when our phones ring, it’s a waste of our time, either because the caller can’t hire us or because we don’t want him to.

It doesn’t hurt that it also demonstrates the influence tools of reciprocation (giving the potential caller something for free), commitment (when the caller reads that page and calls anyway, he is hooked), and social proof (I have enough business that I can afford to be blunt about who should not hire me).

I tell young lawyers to act like the sort of lawyer when they start that they want to be. If you want to be a low-bid lawyer with the stink of desperation after twenty years, act like that when you start your practice. On the other hand, if you want to be a Man to See, a lawyer for whose help people pay a premium, act like that’s who you are now. If you want to be a lawyer who grovels for his phone to ring, go ahead and grovel now.

Lawyers who would lie to and steal from clients should not be practicing law. A lawyer who would fudge the facts to get his phone to ring would lie to a client. A lawyer who deceives the client to get a case is stealing from the client.

Why does it matter to me whether other lawyers lie to and steal from their clients? I’m proud of my little corner of the profession, the criminal-defense community. It holds a sacred trust, so important to America that the founders included it in the Bill of Rights, and its lawyers are the finest the bar has to offer. But because of its clientele it has a reputation for dishonesty. I would like to see those who fit the public’s stereotype of criminal-defense lawyers run out of the profession, and I’m not shy about helping do the running.

Q. You’ve had a long term, extremely well-regarded blog, Defending People, at which you’ve picked your share of fights and offered some remarkably thoughtful, maybe even scholarly, commentary. What made you start writing? Was it meant as an outlet for your thoughts, a marketing tool, a platform to further an agenda or something else?  Your writing seems to ebb and flow these days. Is it not as much fun as it used to be? If not, what’s changed? Do you see most of the legal writing today helping, hurting or having no impact?

A. Defending People is an outlet for my thoughts. I never had an agenda, and any marketing value was incidental. When I started it I was on hiatus from appellate work, and writers gotta write. Now that my appellate practice is in high gear, I have lots of other things to write.

Most online legal writing is utter crap from people who don’t know and can’t write. I’ll still write occasionally at Defending People, if for no other reason than to raise the tone a bit.

Q. In the past couple of years, your practice has expanded beyond criminal defense into First Amendment law. Your getting a criminal statute thrown out as unconstitutional by the Texas Court of Criminal Appeals certainly helped to propel you into the upper echelon of First Amendment lawyers. How did it happen that you decided to transition? Is there a connection between free speech and criminal defense? Do you see speech and expression on the forefront of new crimes?  Do people “get” free speech? There is little question that it’s under attack on college campus, but what about elsewhere? What about in the courts and legislatures? What makes speech so ripe for attack these days?

A. My entrée into First Amendment law was a series of attacks on one particular Texas penal statute, which resulted in one of the largest legal jailbreaks in Texas history. When I started the attacks, I didn’t know what I was doing, but I quickly became one of the foremost authorities on the intersection between criminal law and free-speech law. With one case, I set more convicted people free—convictions reversed, off probation, off the sex-offender registry, off parole, or out of prison—than most lawyers do in a lifetime.

The First Amendment is a lever: every time I kill a statute, countless other people benefit. I will probably never run out of First Amendment work. Legislatures will be passing unconstitutional laws into the foreseeable future. Speech-restricting laws are trendy because legislatures are trying to prevent every harm that can be caused on the internet, and almost everything that happens on the internet is speech.

I have convinced courts across Texas that several such laws are unconstitutional, and I have three cases pending in Georgia—I even got to argue before the Georgia Supreme Court last month. I’d happily travel anywhere else lawyers need a hand challenging statutes that restrict speech. But most lawyers don’t even recognize when a statute restricts speech, or they think that speech is unprotected because it is harmful or violates privacy—propositions that are not true. So I’ve been reaching out to lawyers in Texas and elsewhere offering my assistance for whatever the client can afford.

There are also people who benefit financially from my pro bono fights. By killing speech-restricting penal statutes, I make the world a little safer for the pornographers, strip clubs, and book stores. In fairness, these folks ought to be footing part of the bill.

Q. Where is Mark Bennett heading next? You started out as “Paladin; Have Gun, Will Travel,” and haven’t stopped since. Do you plan to continue further down the First Amendment path? Do you want to keep running for the Court of Criminal Appeals until you get a seat on the big bench? Will you stay a small firm, Bennett & Bennett, or can you picture yourself in something larger?  Maybe even teaching, given your scholarly bent?  Or will you just continue to ride from circuit to circuit waiting for the next jury to pick and cop to cross?

A. I won’t stop trying criminal cases to juries, but I’ve always looked at trial lawyering as similar to prize fighting: the top fighters aren’t fighting every week, or even every month. They’re spending their time staying in shape and getting better at what they do. Developing the state of the trial-advocacy art is important to me. It helps me to be a better trial lawyer, and gives me something to pass along to make others better as well. I will build my skunkworks project, and keep mentoring young lawyers.

Last year I celebrated my 20th year of practicing criminal-defense law. My criminal-defense legacy is secure in the form of two generations of protégés, and twenty years is long enough to focus so intensely on one thing. So I am directing more of my efforts to where they will make the most difference for the most people. This means more litigation of First Amendment issues, in both criminal court and civil court. I have a small civil free-speech practice already, defending against defamation suits. I am expanding this practice, using my free-speech expertise to represent in civil court more of the people who benefit indirectly from, and can afford to foot part of the bill for, my criminal First Amendment fights.

Cross: Walter Olson, A Good Lawyer’s Best Friend

Jan. 27, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Walter Olson, whose blog, Overlawyered, is recognized as the first law blog ever, and who is a Senior Fellow with the Cato Institute.

Q. As the founder of what most of us consider the first law blog, Overlawyered, you have become as transparent in your views as you remain a mystery as a person.  You went to Yale, long before all the safe space shouting began, but that’s about all I could find out about your formative years. So where did Wally Olson come from? Any other university, degrees?  What was your major?  What did you want to do when you went into Yale? And then what did you want to do when you came out?

A. I myself escaped by a bare whisker from attending law school; many times since I’ve been told that had I gone there I would never have dared take such a disrespectful attitude later on in my books (“the professors would have beaten it out of you”). And of course the debt burden might have made it harder for me to persevere as a writer.

Instead I briefly started grad school in economics, which had been my undergrad major, but soon realized that although I was drawn toward economic history and the analysis of market phenomena, I didn’t aspire to be a professional economist. You may wonder about my views on the law and economics movement, which are a bit of a love/hate mix – it has done so much splendid work, but also so much work that reads as if written by someone raised by wolves, such as models of litigation that assume it has zero transaction costs.

Q. When I first stumbled across Overlawyered, it was primarily about tort reform, with you and Ted Frank (who has since gone on to run the Center for Class Action Fairness) beating the crap out of personal injury and class action lawyers. What made you focus your interests on lawyers, in the first place, and personal injury lawyers in particular?

A. Two things combined to bump me from the economic onto the legal writing path. First, the litigation business in the 1980s was something completely new that was constantly making news, with stunning individual cases like Joe Jamail’s $10 billion score against Pennzoil on a claim arguably worth zero, and a new business plan of mass litigation both arising from and itself stoking public fears on hazards both real and imagined (silicone breast implants, childhood vaccines).

Second, I found myself thrown in among brilliant legal thinkers who were very good at getting me interested in their subject. I was helping edit a magazine called Regulation (put out now by Cato, then by the American Enterprise Institute), edited by Nino Scalia. I worked on pieces by rising writers like Peter Huber, Richard Epstein, and many more. “These are the most interesting issues in public policy right now and no one has managed to explain them to a general readership yet,” I thought.

Q. Since those early days, you’ve spread out to issues involving criminal law, school law (with an emphasis on the harm done to children by cops and school admins with their inflexible rules).  Still, the name “Overlawyered” is itself a pointed political statement. Why (or why not)?  Is your “issue” with the lawyers or the legal system? Why do you hate lawyers so much?

A. How silly to think I hate lawyers; they are (part of) the intended audience for almost every word I write. No, my target is the legal system especially as shaped by ideas, movements, and would-be reformers. Of course some members of the profession are personally quite evil but in the end I have trouble staying interested in evil persons; most of them are banal. I am much more fascinated by the way bad legal incentives built into a system can take nice, or at least ordinary, people and put them in a position where they are willing to destroy adversaries, connive at perjury, rationalize injustice, or whatever.

Q. You’ve been a scholar with the Manhattan Institute, a conservative Think Tank, and now the Cato Institute, a libertarian Think Tank.  What drew you to the Think Tanks? What drew you to these Think Tanks in particular? What made you find a home in conservative libertarian politics?  Are you a faithful member of the team, or do you have any disagreements with Manhattan Institute and/or Cato?

A. None of these organizations (including the American Enterprise Institute, where I started off) imposes a heavy-handed ideological line, and I have been grateful for that. I’ve always written on a broader range of interests than law alone and have helped launch many publications in other areas, such as the websites Secular Right and Independent Gay Forum.

I am especially grateful to Cato because they explicitly urged me to do more rather than less branching out. Six years ago, when they invited me to join them, I felt that after a quarter-century, I’d basically written most of what I ever wanted to say about tort controversies. Cato has real depth in areas I’d never had much occasion to write on during my years in New York City, such as constitutional law and Supreme Court coverage. It has a libertarian vantage point that combines a traditionalist’s respect for the Anglo-American legal and constitutional inheritance with a more liberal stand on many present-day cultural issues. That happens to suit me exactly.

Q. Your first book, The Litigation Explosion, rips civil litigators to shreds, laying the blight of litigiousness of American society at their feet for fostering a lawsuit for everything.  Are lawyers really that greedy and manipulative?  Certainly, there are some causes worthy of litigation, right?  Where is the line drawn? Is Overlawyered over-tarring all civil litigators? Aren’t there any lawyers with integrity out there handling personal injury?

A. The Litigation Explosion comes down hard on modern developments in legal ethics, procedure, and so forth, but in every case it’s defending propositions — “don’t stir up litigation,” for example – that had been accepted, even seen as axiomatic, by generations of lawyers previously. I offered a wide-ranging critique, but there really isn’t any major element of it, whether it be about notice pleading or forum-shopping or wide-open discovery, where I wasn’t tracking the footprints of respected judges and practitioners who had already noted these problems.

Where I perhaps was a bit more original was in systematically challenging the then-fashionable ideology from the law schools that saw litigation as a socially productive way to get ever more justice and deterrence and social insurance and accordingly sought ways to promote more and more of these good things – Allow citizen suits over everything! Take any discovery you want! Let everything get to a jury! One-way attorneys’ fees when it’s over! I called this the “invisible fist theory,” a Bizarro-version of Adam Smith’s much more plausible invisible-hand theory of the economy, and I made fun of it. People forget how popular that view of litigation was for a while among supposedly advanced thinkers, though it has been in retreat for a while.

Q. In your next book, The Excuse Factory, you write about “how Kafkaesque employment laws make it nearly impossible to fire even the most incompetent and unmotivated workers.”  Is this about lawyers, or laws?

From the merely annoying, like the chronically late secretary, to the extremely dangerous, like the alcoholic airline pilot, Olson shows how the legal system coddles those who least deserve it. In the name of protecting victims of discrimination with laws like the Americans with Disabilities Act and the 1991 Civil Rights Act, we have made it tremendously difficult just to get people to do their jobs.

That was from 1997, and problems associated with the Civil Rights Act and the Americans with Disabilities Act are far more severe and ubiquitous today than anyone could have imagined back then. How did that happen? What has changed in America in the past two decades that has not merely reinforced the concerns, but expanded them to such unrelated issues as “fat shaming”?  Was this the lawyers’ fault?

A. I take no credit for being prescient; I could see the momentum building. In the law reviews, there were (and are) twenty articles urging the expansion of employment discrimination law for every one that sees problems or costs in it. Collective bargaining was shriveling year by year, while employment suits proliferated, resulting in the great aphorism I quoted from a now deceased-lawyer about how it’s easier to get $100,000 for one worker than it is to get ten cents an hour for all the workers.

Identity politics never cools off, and the anti-discrimination principle is as close as we’ve got in this country to a secular creed. Whenever I find a case where I think, this time they’ve got to admit the law goes too far – the fire department, for example, ordered to stop discriminating in favor of applicants to have the upper-body strength to carry a charged hose or a human body — I find that the ACLU or the feminist or ADA groups are proud of that outcome and that Congress is utterly unwilling to say no to them.

Q. Your next book, The Rule of Lawyers, was published in 2003, where you take on the class action bar, and most notably, the $246 billion tobacco settlement. Is there any virtue to be had for the lawyers representing the little guys against behemoth corporations?  You attack the lawyers for fighting for their own paychecks rather than the interests of the class, but is that a flaw of the system or the lawyers who chose to put their efforts toward gaming the system? Should class actions be banned, or do they serve any purpose? And with guys like Ted watching the watchers, is there any hope for legitimacy for the future of class actions?

A. The Rule of Lawyers tackled industry-wide litigation and what came to be called regulation through litigation, and especially the phenomenon of private contingency lawyers teaming up with state AGs, mayors, or other levels of government to take down industries, which nearly worked against gunmakers and was tried with varying degrees of success against a half-dozen other lines of business following tobacco. If your idea is to enact a romantic David and Goliath story, lawsuits by Masters of the Universe tort guys flying around in their private jets against mom and pop gun stores or nonprofit hospital executives aren’t my idea of that.

On tobacco, we lived through a period where not only were state AGs hiring their old professional and law-school chums without competitive bidding for eight- and nine-figure fee pots, but the legislatures of Maryland and Florida, to name two states, enacted statutes retroactively establishing liability in pending suits filed by those states, which made a cool budget enhancer, no? The whole process was just spectacularly corrupt on multiple levels, playing at the forms of a U.S.-style court system but really channeling loot to those in charge. I think the word is “tinpot.”

Now I think there was a very healthy revulsion afterward among bench, bar, public officials, and others, to the things I wrote about, and many of them quietly resolved that things must not be done this way again in future. But with a very few exceptions, such as sending the then Texas AG to prison, there was never a reckoning over what happened in the tobacco episode.

Q. And not to belabor your books, but your last book, Schools for Misrule (which I reviewed), goes after law schools and its overwhelmingly liberal professoriate.  That was in 2011, and by my highly unscientific calculations, the Legal Academy has not only grown more radical in its liberal politics, but more shameless in its exploitation of scholarly credentials to pursue its agenda.  Is there any going back?  Where are the intellectually honest scholars, the conservative academics? Law school isn’t gender studies, so what has gone so horribly wrong that it has been consumed by progressivism?

A. Please do belabor my books. This may be one instance where my view is a bit less bleak than yours. Schools for Misrule is a book about bad ideas in the law schools, and those bad ideas (as at business schools and schools of education) often arrive in fads that sweep through with little resistance: public interest law, welfare rights law, international human rights law, law and inequality, and whatever the Ford Foundation decides to move onto next.

But that is only part of the picture. While the law schools now host many thinkers unfriendly to free expression and due process, they also host many of the leading advocates of those principles. Who raised objections at Harvard when administration decided to cave to the new Title IX regime? A bunch of law professors. And there’s always that “compared to what” question: given the forces pushing ideological uniformity and indoctrination on many campuses, the law school – even where there is only a solitary one or two conservatives or libertarians – will often be a locus of resistance, simply because most law teachers crave the freedom to show that issues have more than one side.

Q. While some might mistakenly see your books and Overlawyered and believe that you’re a serious lawyer hater, that’s really not the case at all. Indeed, you’ve been very supportive of lawyers who defend the Constitution, both criminal defense and First Amendment in particular. What makes them different? Is it just a matter of practice area, the particular niche served, that distinguishes good lawyers from bad?  Perhaps your “overlawyered” issue is less a reflection of the legal profession, the sort of folks who choose to practice law, and more a condemnation of those who are greedy and disreputable?

A. I hope I haven’t let criminal defense lawyers, or lawyers who fight the government, off too easily. I’ve run pieces poking fun at far-fetched or turn-over-every-rock criminal defenses, and (often) at overstuffed fee requests by lawyers who prevail against the government. And as you’ve acknowledged yourself, the fact that there’s a ton of genuine police misconduct doesn’t mean there isn’t also a ton of bogus claiming of police misconduct, often by fairly arrested perps who may feel they have nothing to lose by such a bogus claim.

Even so, you’re on to something about how needless civil lawsuits don’t quite have a parallel on the criminal defense side. If you sprain your wrist slipping on your aunt’s porch the socially optimal number of lawsuits may be zero, no matter how genuinely it hurts, but when someone is in peril of imprisonment the optimal amount of criminal defense effort is not zero; it is reasonable for the state to have to prove its case.

Q. While this will not likely surprise you, a lot of lawyers find themselves in general agreement with your criticism of the profession, even if not with every specific issue.  That said, would we do better to have a society without lawyers? While much mischief can be attributed to the legal system, what would we do without it?  How do we “raise” the next generation of lawyers to do a better job of serving their clients and society without taking away their incentives to enter the profession?  Is an underlawyered future better than an overlawyered one?

A. The choice of not having lawyers or law at all is a false one. To criticize the medical profession over its dispensing of unneeded surgeries, side-effect-laden happy pills, or baseless psychiatric diagnoses is not to call for a world without the medical profession. Unlike some economists and some of my libertarian colleagues, I think there is merit in the tradition of recognizing certain learned professions that are subject to special ethical demands and elements of self-governance, as opposed to running on the business model of ordinary lines of commerce.

Unfortunately, our law often seems intent on keeping the bad aspects of guild governance (such as ferocious application of unauthorized-practice against innocuous service providers) while jettisoning core elements of ethics that are much more important in retaining public trust.