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THE BEHAVIOUR OF FAMILY LAWYERS AND THE IMPLICATIONS
FOR LEGAL EDUCATION
JOHN H WADE*
Legal educators have often developed courses with the purported goal of teaching students to “think like lawyers.” Yet little is known about the ways various classes of lawyers think or behave. This paper offers some insights through anecdotal observations of the behaviour of family lawyers in Sydney. It must be conceded, however, that even beginning to demystify lawyerly behaviour does little to resolve current debates about the goals and methods of legal education.
DEARTH OF KNOWLEDGE ABOUT LAWYERLY BEHAVIOUR
A number of distinguished scholars have observed that
we know relatively little about what various cultures and subcultures of lawyers
actually do, much less about how they think.1 This is
indeed ironic since one classical and ubiquitous (though controversial)
exposition of the goals of legal education is, to
teach students to think and
behave like lawyers.2
It is difficult to extract
from practising lawyers a helpful description of what they do or how they think
— they just do it.3 Only when lawyers or judicial
officers criticise other lawyers do articulate hints emerge of what is
considered to be proper or appropriate
lawyerly behaviour and thought.
Yet
it is vital for legal educators and Law Societies to reflect upon and
systematise the behaviour of lawyers, just as they attempt
to reflect upon and
systematise the behaviour of judges. Since “thinking like a lawyer”
is often claimed to provide a
minor or major goal of legal education, it would
be helpful to gather a few insights into this mythical and wobbly yardstick.
This
will undoubtedly assist to:
The record which follows,
describing the patterns of behaviour of some family lawyers, is based entirely
upon anecdotal observation
of lawyers in Sydney. Opportunities may emerge later
to record and/or film lawyerly behaviour “behind closed doors” on
a
more systematic basis.4
The study of written
records produced within the legal world tends to hide more than is disclosed.
Legal correspondence, pleadings,
affidavits, court transcripts and judicial
judgments all open only very small windows into the dynamics of lawyerly
behaviour. No
doubt the anecdotal anthropologist may record no more than a few
subjective ramblings; but such a method may gain access to more
closed doors and
honest conversations than a more systematic colleague equipped with
questionnaire and tape recorder.
The writer also attempted to record his own
responses to practising as a family lawyer before a process of desensitisation
set in.5
COMPETING IMAGES AND PRACTICES OF “PROFESSIONALS”
Lawyers, and members of other work groups sometimes
called “professionals”, find themselves caught between the competing
images and the actual practices of their occupation. On the left wing are the
images that lawyers like those engaged in other professions
are monopolisitic,
insulated from market forces, exploitative, under-regulated, underaccountable,
reactionary, aggressive, overpaid,
clerical, opposed to any kind of change,
obstructive, pompous, afflicted with jargon and narrow in their understanding of
life.
On the right wing are the competing images and practices depicting
lawyers as servants, pillars of democratic traditions, hard-working,
over-regulated, accountable, carefully changing, devoted to the well-being of
their clients, learned, constantly changing by learning
and technically
proficient. Anecdotes abound to support both ends of the spectrum.
Who wins
the battle of anecdotes? Literature, movies and research have proliferated
giving examples of both competing images.6 As a
practising lawyer, one existentially discovers both ends of the spectrum both
within oneself and in the behaviour of colleagues
on a daily basis. How
devotedly can one serve a client who is not paying his/her fees? How often can
one keep adapting when there
are sunk costs and comfortable habits in tradition?
The right wing images and practices obviously have a high ethical content.
They are vigorously propagated by Law Societies. They provide
a noble ideal to
aspire towards and are an antidote to rampant cynicism. As moral and spiritual
beings, some law students long to
find that the image is more than an aspiration
and that there are indeed legal niches where service, accountability, change and
growth
are both realistic goals and emerging realities.
The spectrum of
anecdotes, images and practices prompts emotive debates around the concept of
“professional.” On the left
wing, this word represents a grab for
power and control by a group of workers; on the right wing, a description of a
group of workers
who possess a sufficient number of admirable
traits.7
As the images and practices of the legal
profession move towards the low (left) end of the spectrum, a variety of
responses occur.
In particular, one reaction is to exhort the community to
remember the vision, ethical position and history of sacrifice which lie
behind
justice systems in western democracies.8 Precious
institutions and habits should not be surrendered readily to cynicism and
self-interest. For example,
The greatest single task of a free and democratic society is the just administration of the Law — that civilizing presence which bestows order and preserves personal rights and liberty. Lawyers have the unique privilege of sharing in that fundamental undertaking. In whatever manner they are practising they have a primary duty to serve the administration of justice. No commitment to a client or an employer can exempt a lawyer from that duty to act honestly and fairly within the law. In the discharge of that special responsibility, the profession of law, if it is conscientiously followed, can claim to be honourable.
It is that basic shared responsibility to the community which binds the profession to an ethical system founded on principles of honest and diligent service. Common allegiance to that system by lawyers allows them to retain professional cohesion and identity despite the great variety in their modes of practice.9
Such
exhortations may have a minor effect to move the images and behaviours of some
lawyers towards the high ends of the spectrum
of professional behaviour. It is
certainly worth advocating some inspirational goals rather than wallowing in a
cynical form of entropy
and realism.
Nevertheless, as the remainder of this
paper argues, a degree of de-mythologising realism concerning what family
lawyers actually
do, can assist in the construction of new visions and training
for lawyers.
Social Changes Affecting the Legal Profession
The spectrum of competing views about professions,
including the legal profession, has been highlighted in recent years because of
a number of changes taking place in society. These changes have tended to
undermine conservative images attached to the medical and
legal professions,
except at the most expensive, highly specialised ends of those professions. As a
result, the legal profession
is often described as being in
“crisis.”10
History may describe this
stage less dramatically as a moderately painful
transition.11 Three decades of transition may be a mere
moment for an historian but a lifetime of turmoil for a participating actor.
The changes, which in snowball fashion are both causes and symptoms of the
decline of ideological professionalism, include more educated
consumers
demanding better and cheaper legal services; more aggressive governments seeking
to cut legal aid and court expenditure;
awareness that many traditional tasks
can be performed perhaps even better by banks, accountants, clients and
paralegals; fierce
competition within the legal profession for client loyalty
and payment; the emergence of multi-disciplinary partnerships; the loss
of
networks and collegiality within the profession; mergers of law firms and the
emergence of mega-firms; a shortage of solicitors
and
barristers;12 the demystification of the behaviour of
lawyers, judges and other officers of the legal system; nominal control by and
reactionary
or hesitant policies of Law Societies; marketing campaigns by
lawyers and Law Societies; increasing overhead costs leading to less
service for
non-paying or legally aided clients; and a bombardment of legislative and
procedural change which increase both de facto
specialisation and creeping
obsolescence.
WHAT DO FAMILY LAWYERS ACTUALLY DO?
Obviously, attempts can be made to answer this
question at different levels of generality. In one well-known article, it was
stated
at a high level of generality that family lawyers do five things —
namely listen, educate, prepare documents, negotiate and,
sometimes,
litigate.13 Similarly, how these tasks are done differs
dramatically depending upon personality, learned style and culture. Further, the
behaviour
of family lawyers differs in the many sub-cultures which exist around
Australia and as between country, suburban and city
practices.14 Moreover, the habits learned early in a
lawyer’s career tend to persist. Some researchers have attempted to
classify the styles
of behaviour of family lawyers into categories such as
gladiators, bombers, advocates, counsellors, journeymen, undertakers and
mechanics.15
At a lower level of generality, and
across most styles, I offer some observations of what family lawyers do.
Listening
They listen to and watch clients. As the client
reconstructs his/her version of history, the lawyer listens with occasional
questions
in order to evaluate the client’s memory, consistency, tendency
to exaggerate, expectations of cost, delay and outcome, tenacity
to withstand
extended negotiations or litigation, unresolved emotional distress, bargaining
weaknesses and strengths, ability to
do homework and to organize ideas.
Listening is usually accompanied by notetaking and occasional questions
aimed to supplement information which the lawyer perceives
to be relevant.
“Exactly what did the child say as he stepped out of the car?”
“Who else was present when that
event occurred?” “Can you tell
me exactly where the money came from to buy the house?” “Do you have
any documentary
evidence of the sale?” “Is there anyone who
particularly dislikes your husband?”
The listening process is used to
do considerably more than collect the client’s reconstructed version of
history and hopes for
the future. It is part of an evaluation of the
client’s character, motivation, emotional stage, tenacity and ability to
understand
forthcoming advice. The further questions asked by the lawyer are
also the beginning of the education process by which the lawyer
indicates that
his/her world of relevance does not coincide with the client’s perception
of relevance.
Most lawyers restate an edited version of what they hear the
client say about the past and hopes for the future. This is done not
only to
assure the client that he or she has been heard, but also to ensure that the
lawyer will act only on correct instructions.16
Client reconstructions of the past often dwell upon interpretations of who
was to blame. Lawyers tend to respond by gently affirming
the client’s
interpretation – “That must have been very distressing.”
Client and lawyer are like performer and bored, but dutiful, audience — the lawyer will not interrupt the aria, but she will not applaud much either for fear of an encore. Lawyers generally join with, and validate, the client’s vocabulary of blame only to reassure wavering clients of the correctness of their decision to secure a divorce.17
Discussing fault may also have a utilitarian function of wooing support from the lawyer.
By projecting blame on their spouses, clients work to reinforce that loyalty, to penetrate the objectivity and reduce the social distance built into the traditional professional relationship. Their vocabulary serves to add sympathy to fees as a basis on which their lawyers’ energies can be commanded.18
Educating — Giving Advice
While hearing the client’s reconstruction of
the past, perceptions of relevance and hopes for the future, the lawyer begins
an ongoing education process of the client. This usually involves a cyclical
process of allowing the client to express his or her
subjective perceptions and
then reminding the client again of the objective realities of the processes of
legal negotiation and litigation.
With some clients, these educational comments
have to be repeated many times.19 This education
process allows the lawyer attempts to do many things.
Explode myths.
By asking questions, the lawyer extracts the myths, expectations and folk
lore which the client brings into the lawyer’s office,
so that these can
be firmly contradicted by examples and stories.20
Contradict bush-lawyers. The lawyer often explains that no two cases
are the same. Many clients have been given advice already by friends, relatives
and bush-lawyers
based on what they have heard.
De-emphasise marital
fault. As the client’s history recounts episodes of his or her
partner’s fault, the lawyer gently reminds the client of what
is
considered to be relevant in the legal system. “I know it’s not
fair, but that is what Parliament has decreed.”
“He has treated you
very badly, but I’ve seen our local judges become upset when those kinds
of incidents are put into
affidavits — we can’t take that
risk.”
Confirm what is “normal.” Family
lawyers commonly tell clients that past or predicted events are quite normal,
common or to be expected. “It’s normal
for you to be very distressed
at this time.” “It’s normal for husbands to make tactical
custody claims.”
“It’s normal for valuations to be widely
divergent.” “It’s normal for children to be confused on access
days.”
These comments help to alleviate a client’s sense of
panic or guilt; they may help the client to believe that the process has
a
predictable pattern; and may convince the client that he or she has a competent
and experienced adviser.
Undermine confidence in litigation. Family
lawyers attempt to educate clients about the delay, uncertainty and cost of
undertaking a contested hearing. Court proceedings
are described as “a
lottery,” “accident prone” and as “brain surgery with an
axe.” “The
Family Court cannot give you justice; it will give you a
result.” The courts are often depicted as being staffed by the overworked,
incompetent or unpredictable.
Judges in particular do not fare well when divorce lawyers describe the legal process to their clients. Many of the lawyers in our sample stress the limited competence of judges and the ways that they can confuse even simple problems.21
Clients
sometimes do not take in these messages and are often devastated by the process
and result of a contested hearing.22 By this
educational process, lawyers are able to exert considerable pressure upon their
clients to settle out of court. Probably
around 90 per cent of disputes which
enter the office of a family lawyer settle by agreement.23
Family lawyers press clients to settle not only for the
client’s sake. They also have self interest in avoiding disgruntled
clients who inevitably blame their lawyers at least in part for the result,
process or cost, and then demonstrate a reluctance to
pay for the hefty court
costs.
Demonstrate insider knowledge. Family lawyers often make
comments to clients which show that the lawyer has highly specialised
information on how the system really
works. “Court delays are currently 14
months.” “The lawyer for the other side is a well-known
gladiator.”
“Judge X or counsellor Y is away on holidays.”
The purpose of these comments seems to be primarily to give the client
confidence that he or she has chosen a wise lawyer and that
the lawyer’s
judgment is worthy of trust.
Warn about danger areas. After hearing a
client’s story, a family lawyer warns a client about possible pitfalls.
These are warnings about future events
which may possibly severely prejudice the
client’s position. Such advice may include warnings: never criticize a
parent within
the hearing of that parent’s child; provide opportunities
for contact by an access parent; be aware of the possible income
tax,
immigration or social security implications of the case; lodge a caveat on
readily saleable property; make full disclosure of
assets in sworn documents;
make copies of any business records which may become inaccessible in the future;
or, consider proposed
child access arrangements on Christmas Days, statutory and
school holidays.
When giving this advice, family lawyers display a
substantial dose of street cunning learned in the schools of fear, force and
fraud
which surrounds some family disputes.
This education process takes
place in an atmosphere of support, story-telling and often humour. It is
communication by words and body
language with important advice being confirmed
by letter both to assist the client and to provide self-serving evidence that
the
advice was in fact given. Only rarely is the oral advice and cajoling backed
up by educational literature or videos.
Clerical Functions
Family lawyers demonstrate skills of organizing their
thoughts so that client histories and concerns can be translated into pleadings,
affidavits and letters via the ubiquitous dictaphone. Constant practice on the
telephone and dictaphone refines these organizational
and oral skills.
The
creation of documents is, of course, assisted by an array of basic precedents
accessible on word processors. Because family law
is in a constant state of
flux, keeping forms and precedents up-to-date is a labour-intensive task. There
is a tendency to defer
or delegate the task of updating as there are sufficient
crises on the production line to divert attention away from constant pressures
to regear the machinery.
Creation of documents is often effected under
considerable time constraints. Consent orders are regularly drafted in
hand-writing
in the corridors of the courts and submitted to registrars or
judges for approval while the client’s adrenalin and motivation
to settle
are high. These skills of drafting-on-the- run are honed by experience and
become more complex as each lawyer encounters
potential pitfalls. That is, the
substantive additions to documents seem to arise more from personal experience
of disaster and from
practitioner gossip than from assiduous reading of the
latest cases or journals. It is more an oral and anecdotal culture than bookish
and systematic.
It is clear that some of these clerical and drafting skills
can be readily performed by laypersons with a little assistance. For example,
in
uncomplicated cases, clients who have the motivation and time to invest are
encouraged by lawyers to obtain a do-it-yourself
divorce.24
A family lawyer’s knowledge
appears to be of a different kind from the systematic series of propositions and
exceptions learned
at law school. It consists of a process or way of approaching
problems. Disorganized client histories are turned into chronologies
of what the
lawyer perceives to be relevant; further information is then systematically
collected or extracted from both client and
lawyer for the other side by a slow
process of telephone calls, letters, affidavits and production of documents.
Inertia, hostility,
expense, procrastination and crisis management often make
this a drawn out process. This task is symbolised by the adage, “look
after the facts and the law will take care of itself.”
Only
infrequently do family lawyers appear to undertake systematic research —
it is expensive, beyond the means of most clients
and legal principles usually
only provide one small piece in the jigsaw of resolving the dispute. Some rules
relating to procedure
and discovery are known by heart but this ignorance about
one kind of law is usually effectively padded: by a sound sense of danger;
by
running cases past colleagues for hints; by techniques of speaking graciously,
cautiously and evasively on topics about which
little is known; and, if
settlement does not eventuate, using barristers as possible insurance against
overlooked or unknown rules
of law.
Self-Defence
As a dispute moves towards being resolved by a
judicial decision, so lawyer control of the situation gradually slips away. The
potential
for disappointing results and disgruntled clients increases
dramatical1y.25
For the statistically few cases
which need an umpire’s decision, the adage “if anything can go
wrong, it will” is
particularly apt. Little wonder that lawyers have such
an interest in damage control of several kinds by staying out of ultimate
adjudication.
Family lawyers are particularly aware that today’s
client may be tomorrow’s disputant; that a certain degree of client
hostility is inevitable given the clumsiness and delays associated with fact
collection and negotiation; that their future earning
potential depends upon
maintaining a reputation for honesty and fair dealing with colleagues and
clients; that their licenses and
considerable sunk costs to practise as a lawyer
can be lost by a Law Society responding to a complaint; that a certain number of
clients will be lying, engaging in illegal activities and using the lawyer as a
dispensable pawn in a larger game; that a certain
percentage of lawyers engage
in perjury, trial by ambush and dirty tricks;26 and
that commercial partners and legal colleagues are quick to disband a family law
department which does not display a healthy profit
margin.
Enlightened
self-interest, therefore, develops a profound interest in the methods of fear,
force and fraud. Underneath the gregarious
story telling of the surviving family
lawyers lies a reservoir of street cunning and tactics for survival.
Because
of the turbulent nature of family law practice, family lawyers develop an
ability to respond with equanimity and humour to
daily disasters. Any other
response would lead to burn-out.27 However,
experiencing daily disaster also means that surviving family lawyers learn
quickly. Seared upon their consciousness are
lessons concerning the variety of
ways that negotiation, settlements and litigation can go astray.
IMPLICATIONS FOR LEGAL EDUCATION?
What are the implications of these early insights into the behaviour of family lawyers? They intensify, rather than alleviate or enlighten the debates which surround legal education.
Reading about legal education can be depressing for a law professor.... [The] overall assessment of legal education is anything but favourable. If the writing accurately pictures the reality, the following assertions are at least partially true: law professors do not prepare their graduates adequately for law practice; the law school curriculum is neither properly theoretical nor adequately practical; law schools create unproductive stress and anxiety in their students; law students are generally bored after the first semester of study; law professors, despite their protestations to the contrary, stress knowledge of rules rather than broader legal issues; and the law school curriculum inclines students towards serving the affluent. Historically, law schools have claimed with confidence that they teach their students to think like lawyers, but a recent study casts doubt on that assertion as wel1.28
Observations of the behaviour of lawyers can be
used to promote whichever school of thought one already supports. One well-known
article
places law teachers into five stereotypical categories — the
traditional legal scholar, the practitioner-scholar, the clinical
law teacher,
the interdisciplinary scholar and the activist.29 The
traditional legal scholar responds to studies of lawyer behaviour, “It
does not matter how lawyers behave or think. Law
schools are here to teach how
to use a law library, to develop a certain style of analytical speaking,
thinking and writing, and
to memorise a certain number of fundamental rules and
policies. The fact that many practising lawyers may rarely use these skills
is
irrelevant. Anyhow, these traditionally taught skills will probably be used more
often by advocates, judges and law reformers
than by desk-bound lawyers.”
The practitioner-scholar responds, “These insights show how important
it is to break down the skills of practising lawyers into
segments and to offer
courses which systematically teach these skills. For example, more resources
should be directed towards courses
on the theory and practice of interviewing,
communication, drafting, time management, negotiation, mediation and
organization. Students
should not be thrown into the crucible of legal practice
and there nervously learn by trial and error or develop bad habits.”
The clinical law teacher argues that these insights into lawyerly behaviour
reinforce what he or she has always advocated, “Complex
skills are best
taught in the messy environment of a functioning law clinic. The stages of doing
can be immediately identified, analysed,
systematised and improved while student
motivation levels are high and habits have not set
in.”30
The interdisciplinarian finds
considerable encouragement for his or her research and teaching from the study
of lawyer’s behaviour,
“Anecdotal insights are only the beginning of
the studies that can be done by psychologists and by sociologists of the legal
profession and legal system. Interdisciplinary approaches open new windows to
both understanding and reforming the legal system.
Moreover, the fact that the
necessary lawyering skills are learned on the job at least to a moderate level
of competence, and that
approximately 50 per cent of law graduates will leave
traditional legal practice within 5 years of graduation, mean that the law
school curriculum should concentrate resources on other skills and knowledge
which are of more long term benefit to graduates and
to Australian society. As
many law graduates will end up in influential positions of leadership, the
curriculum should emphasise
policy, ethics and the process of inter-disciplinary
research.”
The activist teacher, committed to the use of the legal
system to serve a clearly identified cause (such as the preservation of the
environment, assistance to minority groups, feminism, religious freedom or
service of the poor) is also heartened by the studies
of lawyer behaviour,
“Demythologising the behaviour of lawyers makes the legal profession look
far less seductive to law students.
Students see lawyers more realistically as
reasonably skilled and highly-pressured negotiators, managers and
clerks.31 Students then become more interested in
alternative careers before they have committed themselves to a long-term
corporate rut. They
realize at an early stage that “legal” skills of
interviewing, negotiation, organizing ideas, drafting and time management
readily lend themselves to many other more noble careers. Technical excellence
can be put into the service of a variety of macro
or micro causes. It is
obviously a wise national and planetary investment to raise the consciousness
and understanding of students
who will be in positions of leadership both inside
and outside the legal community before time constraints, mortgages and habits
close openness to ideas. Moreover, pragmatic realism about the nature of the job
better prepares students to face the traumatic transition
from university to a
high-paced lawyer’s office, and to exit traditional legal practice before
or after the inevitable at least
two years of experience.”
Dispense with University Law Schools?
Demythologising the behaviour of lawyers (and judges)
not only provides ammunition for all the competing teaching philosophies within
the university law schools, but also fuels another traditional viewpoint. That
is, lawyers do not need a university education at
all — what they need is
some maturity, intelligence, dedication and a system of apprenticeship. A
modified version of that
view is that any university degree is an adequate
prerequisite for legal practice. A general degree provides a maturing delay and
a sieve to test basic skills of reading, writing, memorising, organization of
ideas, working to deadlines and communicating. A sufficient
number of additional
demythologised legal skills will then be learned on the job, just as they are
under the present system of legal
education.
Stephen Gillers has described
the movement of students from academy to legal practice:
Thinkers and stars are the exaggerated and romantic lures new lawyers will find scarce in the life to which they graduate. The intellectual tradition, in the academy allegiant to truth and fairness, now accommodates other demands. Stardom — the lawyer’s media face — is displaced by the exigencies of overhead and a profusion of the ordinary. Law students, impressed in spite of themselves with the seductive world of employer courtships and professional relationships, may sense these impositions in a diffuse and general way. Soon the details will come more sharply into focus. Assembling, dabbling, dissembling, enforcing, and concealing, though on their own terms defensible and offering as honourable a livelihood as most enjoy, nevertheless describe tasks that are unexpected until they are unavoidable. Then, encountered, these roles to be tolerated, even savoured, will be redescribed in the minds and public presentations of their occupiers as good or grand or glorious, as in service to The Law. So myths abide.32
CONCLUSION
The study of the behaviour of lawyers is largely
untilled ground. It has been protected by myths, stereotypes and lawyer-client
confidentiality
for too long. This paper has briefly looked at some of the
behaviours underneath the labels of interviewer, advice-giver and clerk.
Many
complex layers of behaviour and motivation remain to be observed, analysed and
discussed.
As the behaviour and motivation of lawyers is slowly unravelled
by research, the debates about legal education are likely to become
more intense
than ever. For what purposes should what be taught, to whom, by whom, using what
methods, in what milieu and with what
resources?33
The benefit will probably be that as it becomes clearer what lawyers do and
do not do, there will be more pressures on law schools
to clarify and
demythologise what they do and do not do. This will hopefully lead to less
student confusion34 and to considerable improvement in
legal education. Students may even be told in clear terms what mixture of
educational goals and
methods have been chosen from the three broad categories
of rule-manipulation, policy and ethics, and skills.35
If the gradual demythologising of legal behaviour also promotes the gradual
demythologising of legal education, it will be a welcome
by-product.
Necessarily, both tasks will be driven by outsiders but, hopefully, with some
cooperation by those of us inside.
* Faculty of Law, University of Sydney. I wish to thank Judy Blackburn and
Anne Duffield for their assistance.
© (1989). 1 Legal Educ
Rev 165.
1 See for example, BB Boyer & RC Cramton, American Legal Education: An Agenda for Research and Reform (1973–74) 59 Cornell L Rev 221, at 270–74; R Mnookin & L Kornhauser, Bargaining in the Shadow of the Law: the Case of Divorce (1979) 88 Yale LJ 950; K Kressel, The Process of Divorce — How Professionals and Couples Negotiate Settlements (New York: Basic Books, 1985); A Sarat & W Felstiner, Law and Strategy in the Divorce Lawyer’s Office (1986) 20 L & Soc’y Rev 93 [hereinafter cited as Law and Strategy]; B Danet, W Hoffman & N Kermish, Obstacles to the Study of Lawyer-Client Interaction: The Biography of a Failure (1980) 14 L & Soc’y Rev 905; K Kressel et al, Professional Intervention in Divorce: A Summary of the Views of Lawyers, Psychotherapists and Clergy (1978) 2 J Divorce 119; FK Zemans & VG Rosenblum, The Making of a Public Profession (Chicago: American Bar Foundation, 1981); Symposium, The Law Firm as a Social Institution (1985) 37 Stan L Rev 271. For a discussion of the psychology of the lawyering process, see RS Redmount, The Transactional Emphasis in Legal Education (1974) 26 J Legal Educ 253; RS Redmount, Psychological Views — Jurisprudential Theories (1959) 107 U Pa L Rev 472. For discussion of the jurisprudence of lawyering, see LM Brown & TL Shaffer, Toward a Jurisprudence for the Law Office (1972) 17 Am J Juris 125; CD Kelso, Steps Toward a Lawyer Oriented Jurisprudence: Problems, Promises, Procedures and Pitfalls (1967) 19 U Fla L Rev 552.
2 See for example, American Bar Association, Law Schools and Professional Education (Chicago: ABA Press, 1980); D Pearce, E Campbell & D Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Canberra: AGPS, 1987). It should be emphasised that many legal educators do not accept this well-worn goal. They strive to articulate and attain other broader aims.
3 Compare DA Schon, The Reflective Practitioner (New York: Basic Books, 1983).
4 In the USA, there are some recent pioneering reports prepared from taped interviews between family lawyers and clients. See for example, Law and Strategy, supra note 1; A Sarat & W Felstiner, Law and Social Relations: Vocabularies of Motive in Lawyer/Client Interaction (1988) 22 L & Soc’y Rev 737 [hereinafter cited as Social Relations]; J Griffiths, What do Dutch Lawyers Actually do in Divorce Cases (1986) 20 L & Soc’y Rev 135.
5 Daily impressions were recorded into the ubiquitous dictaphone. Compare P Berger & H Kellner, Sociology Reinterpreted (Harmondsworth: Penguin, 1982) at 39–40,
If I am to be successful in this situation as an anthropologist -,which means neither remaining the incomprehending outsider nor “going native” — I must, in a very real sense, become a “plural person” (to an extent everyone is that up to a point, especially in a modern pluralistic society, but there is a qualitative jump here). That is, I am both inside and outside the situation, and my activity as a social-scientific interpreter ensures that I maintain this always tenuous balance. The anthropological field researcher is trained to achieve this curious trick, by a variety of techniques; for instance, the practice of keeping continuous field notes, beyond its obvious instrumental utility, is a ritual for maintaining the insider/outsider status.
6 C Dickens, Bleak House, first published in book form 1853; S Gillers, Great Expectations: Conceptions of Lawyers at the Angle of Entry (1983) 33 J Legal Educ 662.
7 For the debate on how to define a profession, see MS Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: U California Press, 1977); Schon, supra note 3.
8 R Abel, The Decline of Professionalism? (1986) 49 Mod L Rev 1 [hereinafter cited as Professionalism]; F Riley, The Practice of Law: An Identity Crisis (1989) 27 L Soc’y 150; R Abel, Between Market and State: The Legal Profession in Turmoil (1989) 52 Mod L Rev 285 [hereinafter cited as Market and State]; PM Brown, The Quiet Revolution in the American Law Profession (1986) 14 Fordham Urb L Rev 855.
9 Professionalism, supra note 8; Market and State, supra note 8; D Weisbrot, The Changing Face of Australian Legal Practice (1986) 58 Aust Q 426.
10 Market and State, supra note 8.
11 See for example, HJ Berman, The Interaction of Law and Religion (New York: Abingdon, 1974).
12 Riley, supra note 8, at 50. See also Brown, supra note 8.
13 Mnookin & Kornhauser, supra note 1.
14 Family Law Council, Administration of Family Law in Australia (Canberra: AGPS, 1985).
15 RD Felner et al, Attorneys as Caregivers During Divorce (1982) 52 Am J Orthopsychiatry 323; K Kressel, A Hochberg & TS Meth, A Provisional Typology of Lawyer Attitudes Towards Divorce Practice — Gladiators, Advocates, Counsellors and Journeymen (1984) 7 L & Hum Behaviour 20; Kressel, supra note 1.
16 See A Sherr, Lawyers and Clients: The First Meeting (1986) 49 Mod L Rev 323.
17 Social Relations, supra note 4, at 750.
18 Id at 764.
19 Law and Strategy, supra note 1; Social Relations, supra note 4.
20 J Wilczek, Successful Family Law — Getting to the Heart of the Matter (1985) 59 L Inst J 288. Such folk-lore commonly includes, “Women always get custody.” “Property is normally divided equally.” “An innocent partner can stop the divorce.” “If I win, my partner will pay my legal costs.”
21 Social Relations, supra note 4, at 104.
22 One comprehensive study in Australia which demonstrated a very high level of client satisfaction with lawyer behaviour also showed that at least 50 per cent of clients become dissatisfied with their own lawyer’s performance if the dispute proceeded to a contested hearing. See P McDonald ed, Settling Up — Property and Income Distribution on Divorce in Australia (Sydney: Prentice Hall, 1986) at 51–52.
23 Family Law Council, Annual Report 1988–89 (Canberra: AGPS, 1989). The report notes the percentage of defended matters finalised to total number of orders sought as:
|
|
1984
|
1985
|
1986
|
1987
|
1988
|
|
|
Custody
|
9%
|
9%
|
8%
|
9%
|
9%
|
|
|
Access
|
10%
|
11%
|
13%
|
13%
|
13%
|
|
|
Property
|
10%
|
10%
|
9%
|
11%
|
14%
|
|
|
Maint.
|
7%
|
7%
|
8%
|
11%
|
13%
|
|
|
Injunct
|
5%
|
5%
|
6%
|
9%
|
7%
|
|
The proportion of cases which go to a hearing compared with the numbers of applications filed remains steady at 9 per cent and 13 per cent for custody and access respectively. Property and maintenance matters which proceed to a hearing are reported as steadily increasing.
24 In 1988,42.2 per cent of divorce applications were made in person without representation by lawyers. Family Law Council, Annual Report 1988–89 (Canberra: AGPS, 1989). The recent adoption of forms of pleadings in Family Court may continue to have the side-effect of requiring legal representation in the early stages of property, maintenance and custody disputes. Complex verbal formulae necessarily make laypersons dependent on experts.
25 McDonald, supra note 22, at 51–52, notes that one half of the clients surveyed became disgruntled with their own lawyers if their dispute was determined by judicial decision.
26 See RE Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behaviour in Divorce Litigation (1986) 20 Fam LQ 413.
27 See for example, M Head, Living with the Emotional Demands of a Family Law Practice (1983) 57 L Inst 1569.
28 JO Mudd, Beyond Rationalism: Performance-Referenced Legal Education (1986) 36 J Legal Educ 189, at 189–190 nn 1–7; JH Wade, Legal Education in Australia — Anomie, Angst and Excellence (1989) 39 J Legal Educ 189.
29 See for example, EG Gee & DW Jackson, Bridging the Gap: Legal Education and Lawyer Competency (1977) BYUL Rev 695.
30 Boyer and Cramton observe,
[T]he following advantages of clinical teaching have been suggested: (1) clinical teaching makes it possible to deal with a greater range of skills and abilities, thereby avoiding the repetitiveness of the normal curriculum; (2) clinical methods can draw upon the emotional dynamics of role adjustment and role obligations to provide new motive force for learning; (3) the law clinic creates an atmosphere of camaraderie and co-operation between students and teachers, rather than polarizing the “two cultures”; and (4) the clinical opportunity to demonstrate competence in “real-world situations can enhance and restore student self-esteem. These claims are highly plausible, but thus far evidentiary support for them has been sparse. Boyer & Cramton, supra note 1, at 281–82.
31 See for example, Gillers, supra note 6; DC Bok, A Flawed System of Law Practice and Training (1983) 33 J Legal Educ 570. The activist stance has the important attraction of relieving cognitive dissonance — a psychological and spiritual tension experienced particularly by law students. Lawyers must find some rationalisation or relief from the basic tension of arguing positions which personally they find abhorrent or unconvincing.
32 Gillers supra note 6, at 679.
33 Adapted from WL Twining, Pericles and the Plumber (1967) 83 LQ Rev 396, at 397.
34 Gillers suggests this myth-shaking entry into law school handbooks:
CAUTION: Students often apply to law school in the belief that as lawyers they will do important work, including work that will directly advance justice and fairness in society, if not the world. They expect that a career in law will give their work a meaning absent from other callings for which they may be suited. You should know, before making a final decision to pursue legal training, that although a few men and women do get to do some of this work, the overwhelming majority do not. It has been our experience that law school applicants, through no fault of their own, have an overblown and distorted view of the centrality, excitement, and intellectual challenge of lawyers’ work, including the work they themselves are likely to end up doing. Much of lawyers’ work is repetitive, unimaginative, and routine. Often it is unpleasant, petty, and unkind. For many of you, the economics, and to some extent the ethics, of practice will encourage roles you neither envisioned nor invited. We suggest that you interview some ordinary practicing lawyers in our hometown, and learn exactly what they do in a typical week, before you mail the enclosed application.
Gillers, supra note 6, at 662.
35 RF Mager, Preparing Instructional Objectives, 2nd ed (Belmont, California: David S Lake, 1984).
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