Our legal problems

Americans have an astonishing love-hate relationship with the legal profession. We denounce lawyers as the source of any number of social ills and bemoan the drain-clog that our civil justice system has become. But when we fall victim to some misfortune or injustice -- a car accident, a divorce, a layoff or worse -- suddenly lawyers become our indispensable champions, counselors and friends.

This ambivalence is captured in Catherine Crier’s aptly named diatribe “The Case Against Lawyers” and Johnnie Cochran’s autobiography, “A Lawyer’s Life,” which he could easily have called “The Case for Lawyers, Especially Me.” Although both authors view the legal system as rife with deep-seated wrongs, Crier’s answer is less law and fewer lawyers while Cochran’s is better laws and more lawsuits -- at least the type he files.

Between these competing visions of society and law, there can be no reasonable doubt that Cochran has produced the better book. Ubiquitous self-congratulations aside, it is the sort of book one would hope for from a top trial lawyer like Cochran -- a fun, anecdote-filled ride through his career adorned with commentary about the problems he has faced along the way.

The spine of the book is his own tale of how the great-grandson of slaves started from scratch and emerged as a leading (and highly compensated) champion of celebrities and high-profile victims of alleged police abuse or wrongful conviction.

But Cochran’s book goes beyond just a highly readable recitation of his transformation from deputy district attorney to counsel in such history-making cases as those of Amadou Diallo, Abner Louima, Reginald Denny, Elmer “Geronimo” Pratt and, of course, O.J. Simpson. Cochran’s case-by-case narrative spotlights a host of weak spots in the criminal justice system as well as (perhaps unintentionally) the complex and morally ambiguous role that lawyers play in identifying those flaws.

An anecdote Cochran recounts from the early years captures this provocative aspect. Cochran’s client, a young black man, swears that the robbery charge he faces is the product of mistaken identification, and so Cochran hatches a scheme to discredit the prosecution’s key eyewitness.

Cochran knows that the prosecution is going to reenact some version of that classic scene in which the prosecutor asks the eyewitness whether she sees the perpetrator anywhere in the courtroom. Of course, the witness always points at the person sitting next to the defense lawyer. Everyone who’s watched “Perry Mason” or “The Practice” knows that’s where the defendant sits.

Capitalizing on the sheer predictability of this script, Cochran puts an impostor in the chair next to him, while seating his client somewhere in the gallery. On cue, the eyewitness falls for Cochran’s trick, points to the impostor, and the jury, faced with this unforgettable misidentification, acquits his client in a matter of minutes.

Cochran can’t resist crowing. But he tells the story to illustrate the point that criminal convictions are too often built on evidence -- from eyewitness identifications to jailhouse confessions -- that are less reliable than we would like to believe.

Thanks to the advent of DNA evidence, we now know to a scientific certainty that eyewitnesses, especially when subtly coached by law enforcement, sometimes finger the wrong person and that suspects, under pressure from the police, sometimes admit to crimes they did not commit. The police themselves engage in practices, from racial profiling to outright physical abuse, that further undermine the integrity of the system.

All this is grist for Cochran’s mill. His career triumphs fall into two general categories, cases in which he has exploited systemic weaknesses to exonerate his clients or cases in which he has sued the system for specific (and often racially motivated) abuses. Either way, Cochran’s self-image as a crusader is built on his view that, whether he is freeing suspects or suing cops, the end result is to spur much-needed reform of the system.

There is some merit to this perspective. Even the tragic, evidence-defying verdict in the O.J. Simpson case can be spun positively (as Cochran does in a predictably unenlightening section of the book) as having heightened awareness about racist cops and generated efforts to improve evidence collection techniques.

But, regrettably, Cochran does not match his self-justifying insight with any real soul-searching about the social costs of his courtroom triumphs. In our system, the job of the talented lawyer is not to expose the truth or to see justice done but to advance the interests of his or her client. Ironically, the more talented the lawyer, the greater that lawyer’s ability to subvert the truth to benefit the client. Although Cochran’s own career surely illustrates the point (see O.J. Simpson) Cochran leaves unanswered the crucial question of whether our adversarial system -- in which we hope an approximation of truth will arise from the competing distortions of smooth-tongued lawyers like Cochran -- is really a wise method for administering the law.

On this point, Crier (a former Texas prosecutor and judge turned TV anchor) pulls no punches. Her rants about everything from personal injury law to campaign finance reform and environmental regulation (she particularly hates lawsuits against big tobacco companies) leave little doubt that she views the entire government as a rotting and tyrannical structure posing a daily threat to our liberty.

It’s easy, of course, to throw stones at the system. Juries sometimes return crazy verdicts. Regulators sometimes impose crazy rules. Our drug laws sometimes require judges to impose crazy sentences on relatively minor offenders. Money exercises a crazy degree of influence over policymaking.

But throwing stones, fun as it may be, is no substitute for making a coherent argument, and on that score Crier’s book is a mess. Despite her judicial background, she makes a hash out of the legal and political history that forms the backdrop for her analysis. (Political historians will be surprised to learn, for instance, that “pork barrel politics became the real law of the land” only upon the enactment of Franklin D. Roosevelt’s New Deal in the 1930s.)

Crier also suffers from an acute case of self-contradiction. She claims to be an ardent populist, yet many of her proposals would take power away from the people she claims to champion. So it is that, in her introduction, she broadly declares that the “rule of law was never meant to be a substitute for community standards.” Whatever the merits of this perspective, it can hardly be squared with another of Crier’s central themes: that the courts and Congress must curb the huge damage awards juries sometimes return. After all, these awards reflect exactly the “community standards” she claims to cherish.

Crier’s treatment of government bureaucracies betrays a similar bobble-headedness. On the one hand, she repeats the cliche that an army of obsessive regulators has tied American industry in knots with reams of useless and counterproductive rules. On the other hand, she tells us that, due to the revolving door between government and the private sector, these very same bureaucracies are run by corporate stooges who let American business exploit workers, consumers and the investing public.

Such unexplained tensions in Crier’s analysis do not build confidence in her conclusions. Which is just as well, because Crier proposes to do away with or severely limit numerous cornerstones of American law, including class actions, product liability and the contingency fee system that lets people without means (Crier’s supposed constituency) get able lawyers to take their cases.

It would be lovely if the real flaws in our legal system could be remedied either by more Cochran-style lawyering or the kind of blunderbuss reform Crier demands. Sadly, the enterprise of closing the gap between law and justice has so far surpassed the limits of human wisdom and we are left, as we have been since the Magna Carta or thereabouts, to muddle along, by trial and error, in a never-ending search for a better way.