From the Archives: The Lawyer as Hired Gun

Does "representing" a client extract too high an emotional price from attorneys? One lawyer looks closely at the psychological consequences of settling other people's disputes.

This essay began for me some time ago, during a negotiation in which I found myself being, for lack of a better euphemism, rather harsh toward the opposition. I had consciously adopted the tactic because I sensed that those on the other side of the table were both inexperienced and in a bad bargaining position. It worked nicely, and I was quite please with myself. At least for a little while.

Later on, I began to reflect on the incident and to wonder what it had to say about me in particular and about lawyers in general. For had you asked me if I were a nasty person, I would have said "no." If asked to articulate what had happened at the negotiation, I suspect I would have said that the person speaking had not been the real "me," but just a lawyer naturally seeking advantage for a client. Indeed, I can be quite sure that I would never have acted so harshly on my own behalf.

And therein, I think, lies the clue to what this essay is about. Somehow, the emotional psychology of standing in someone else's place and "representing" their interests is a very different experience than representing yourself about something in which you have a purely personal stake.

At least on the psychological level, however, it is an experience very little talked or written about. And certainly not addressed in law schools. Looking back on my own law school experience, I can think of no course, comment, or discussion that turned on the question of what it was like to stand in someone else's shoes and assert that person's interests as if they were your own. Nor, on a reasonably diligent search, did I find this precise issue addressed in the literature of either law or psychology.

This essay is, therefore, a personal attempt to explore two questions: Why is there a need for "representation," and what are the personal consequences to someone trained, in effect, to become an engine which seeks advantage for others? Based, as they are, on an eight-year, haphazard, personal survey, it could be argued that my observations are limited to those who, as I, practice business litigation. On the other hand, my conversations about these topics with lawyers in diverse fields of law, including criminal and personal injury, lead me to guess that my observations have a general validity beyond my own small segment of the profession.

THE LAWYER AS GUNSLINGER

A cultural anthropologist might be more qualified to discuss the matter, but I am under the impression that the concept of an individual being :represented" by others in judicial proceedings is by no means universal. There have been and are many cultures in which an individual makes his or her own case before the society's dispute-settling mechanisms. Although the notion is so foreign to us that its foolishness is often taken for granted, the idea of self-representation appears, at least on the surface, to make good sense. After all, it is the individual who best knows the facts and the goals of his or her own case. Nevertheless, European culture, especially the English version of that culture, has developed a representative system for adversarial proceedings.

The development appears, at least at first glance, at odds with other aspects of our culture. Ours is, after all, a culture in which the individual is supreme, and in which acts of individual courage, initiative and aggression are widely admired and praised. Thus, a Martian visitor who had studied our culture in general would probably be surprised at the extent to which, in adversarial proceedings, individuals entrust their interests to others.

Some of this development no doubt stems from economic and other factors. Still, it seems to me that an important part of people's desire for representation in legal proceedings is grounded in two psycho-cultural phenomena. The first is a general desire, despite (or perhaps because of) the egocentric nature of our culture, to avoid direct confrontation on important matters. The second is a widespread belief, probably correct, that someone else is better able to be aggressive on your behalf than you, yourself.

While these two observations may seem at first conflicting, they are part of the same phenomenon. The individualistic nature of our society has made winning disputes extremely important as a matter of self-esteem. Thus, for an individual to confront another directly in a dispute is to risk clear and unequivocal defeat. The solution is to hire someone to do it for you. On the one hand, such a person may be better at confrontation than you and so increase your chance of winning. On the other hand, if there is to be a loss, the loss is one that is distanced in such a way as to make it a potentially less ego-involved event. And, of course, the happy prospect of scapegoating is also there in the event of a loss.

In other words, I believe that the desire to hire lawyers in disputes grows out of the same psychology that led people to employ hired guns in the Black Hills of South Dakota in the 1870s.

The observation goes against the profession's conventional wisdom that people hire lawyers not so much as gunslingers, but for disinterested advice on the merits and wisdom of their position in a dispute. In other words, many in the profession would assert that people are primarily looking for someone who is sufficiently distanced from the dispute as to be able to provide reasonable advice on how to proceed. Although there is probably no way to settle the matter definitely, I believe that such a view is wrong. People do not usually hire lawyers so much for long-term strategic advice as for short-term tactical advantage. They sense, even if they do not articulate, that a person who is ego-distant from the dispute may, with less at stake, be willing to fight more ferociously.

And, after all, the role of gladiator on someone else's behalf is much more entrenched and storied in the culture than that of advice-giver. I can think of only two historically-entrenched advice-giving institutions in our society: fortune-tellers and clerics. And, of course, both have derived their positions not so much from worldly experience as from alleged contacts with another world. Although some may argue that people go to doctors to seek advice, this is a misperception. Most people go to doctors out of the same motivations that lead them to go to auto mechanics: to be fixed.

A cogent criticism of my analysis is that the system today has become far too complex and procedurally technical for a person to represent him or herself effectively, even if so included. I do not necessarily disagree with this. My point, however, is that the system developed in this way because of people's desire to have others represent them, not the other way around. My best guess is that even if most of the technicalities of procedure and the specialized substantive expertise were removed as considerations in the system, most clients would still want someone other than themselves to represent them in judicial proceedings.

THE LAWYER AS COUNSELOR

Lawyers do not regard themselves primarily as hired guns. Rather, they tend to think of themselves as persons possessed of a certain wisdom (or at least cynicism) about disputes and their resolution. Why these lawyers' self-image should differ so from the public's conception of lawyers is puzzling. Perhaps it stems from the training lawyers receive, which tends to emphasize the settling of abstract disputes through analysis and tends to de-emphasize, or even to ignore, the fact that such disputes are related to real people with emotional needs. Or perhaps it stems from the fact that gunslinging, despite its pervasiveness in our culture, is somehow looked down upon, while advice giving is somehow elevated in prestige. Whatever the reasons, the profession seems to have emphasized the role of the advice giver. Indeed, there has even been some attempt to institutionalize the role through the use of the pompous terms "counsel" and "counselor."

Lawyers appear to have adopted two distinct responses to the dichotomy between the typical client and typical lawyer outlook on the lawyer's function.

The first group of lawyers deals with the issue by, in effect, putting on the client's emotional clothing. These lawyers tend to identify with the client's cause as if it were their own. On some level, I suspect that these lawyers are the most emotionally satisfied, although i question whether clients ultimately get the best service from them. This is so because these lawyers have difficulty analyzing the facts and the law in an unbiased fashion. As a result, while clients are initially taken with them because of their enthusiasm for the cause, their ultimate judgements about the outcome often turn out to be wrong.

A second, and larger group, has adopted the opposite strategy. Most lawyers, I believe, distance themselves from the emotional issues which the client feels are important and instead concentrate on a rational analysis of the merits.

I believe that the second approach, adopted by most lawyers, also leads to the adoption of emotions as a tactic. Or, putting it another way, most lawyers who adopt the non-emotional approach to their client's problems seem to use the array of emotions available - enthusiasm, anger, despair, reasonableness, etc. - as a tactic in communicating with the other side. Thus, many litigators appear to feign emotions as a purely calculated response.

THE LAWYER AS EMOTIONAL REFUGEE

The interesting question is what this does to people over time. Some seem to tolerate the situation well. They become cynical, hard and emotionally posturing in a litigation context, but seem able to continue normal emotional relations in other contexts. Others, by contrast, seem to be left emotionally bereft. They, start out, fresh from law school, as warm, friendly people but eventually come to see detachment from causes and emotional posturing as traits that they have more and more difficulty keeping out of their personal lives.

The incidence among lawyers of this "emotionally bereft" state is difficult to document with any precision and is mainly a matter of my impressions. Nonetheless, there appears to be a significant number of people in the legal community who undergo rapid hardening of the emotional arteries after they begin practicing law.

There is always the possibility, of course, that the people I have described as emotionally bereft were pre-programmed in that direction, and that they would ultimately have become that ways once subjected to any type of adult stress. A friend of mine who is a psychoanalyst holds that view, although under careful questioning it is apparent that he believes that all lawyers emerge from childhood with aggressive, emotionless personalities.

If my observation is correct that lawyers, and particularly litigators, often distance themselves emotionally from the causes they espouse, that fact may go a long way to explaining a number of institutionalized aspects of the legal profession.

For example, the tendency of lawyers, more than perhaps any other profession with the exception of accountants, to practice in large groups my be partially explained by their desire to have others around with whom they can be emotionally candid. Similarly, the existence of the movement toward pro bono work among lawyers, the large number of voluntary bar associations which attempt to operate in the public interest, and other such institutions may stem at least in part from the desire of many lawyers to have an emotional cause with which they can identify, as opposed to simply a result that they are seeking on someone else's behalf.

The problem of coping with the often necessary professional divorce between advocacy and emotional commitment may also account for many dropouts from the profession. There are studies on the number of lawyers who fail to find employment or drop out of the profession because it is not economically viable for them. However, I am not aware of any study that tracks the reasons otherwise successful lawyers drop out to become writers, teachers, movie producers, ski bums and business persons, often, although not always, at substantial economic sacrifice. Although my data is again impressionistic, I believe that a substantial number of otherwise successful lawyers leave the profession every year for other than economic reasons. I am aware of the significant number who have left partly because they dislike the emotional detachment of the profession.

The emotional detachment inherent in the profession may also explain, at least in part, the steady exodus of private sector lawyers into the professions of teaching and public interest law. In teaching, the divorce of advocacy and emotion is ended by the fact that there are no causes, as such, to espouse on anyone's behalf. In public interest law (with the exception of legal-aid type work) nominal clients exist, but the causes being advocated are usually those with which the public interest lawyers themselves emotionally identify at the outset.

Whatever the validity of my personal observations on these matters, wider candid discussion might be useful both to those who find themselves troubled by the demands of a profession they have already joined and by those who think about becoming lawyers.