Doctors vs. lawyers

Some years ago a doctor friend of mine attended a medical meeting where a lawyer upbraided his listeners for the relative backwardness of their profession.

"Two hundred years ago," boasted the speaker, "when you doctors were still bleeding your patients, we lawyers were drafting the Constitution!"

"It's true," my doctor friend reflects. "Over the past 200 years, we doctors have changed almost everything we do— and lawyers have changed almost nothing."

It's a point worth pondering. Here are two respected professions that have taken diametrically opposed approaches to change.

Until 1920 or thereabouts, medicine was more art than science. Antibiotics, organ and tissue transplants, radiology, pacemakers, cryosurgery— all were unknown. In those benighted days, doctors were not supermen but fallible mortals whose most valued asset often was a soothing bedside manner.

Yet thanks to recent advances in immunology, endoscopy, angioplasty, organ and cellular transplantation and especially the mapping of the human genome, the medical profession today stands on the threshold of eliminating most human diseases and possibly even death itself. These days the medical profession's greatest challenge is not curing sickness but the high cost of this biotechnological revolution, not to mention what to do with the millions of people now surviving into their 90s or beyond.

Zeal to prosecute

And lawyers? Today as in the distant past, the legal profession still largely clings to the adversarial model as the best way to resolve differences, despite the huge cost of lawsuits (in time, money and bitterness), not to mention the mounting evidence that many ostensibly financial conflicts actually stem from emotional roots, and so would be better handled by therapists or counselors than by lawyers. In criminal justice, the concept of "crime and punishment" persists despite growing evidence that punishment rarely improves anything and that more effective (and far less costly) alternatives now exist— again, like therapy.

Hardly a week passes without the exposure of some miscarriage of justice that took place because prosecutors were merely doing their jobs— that is, zealously pursuing guilty verdicts, as opposed to zealously seeking truth. The notorious 1989 case of the "Central Park Five"— spotlighted last month by a Ken Burns TV documentary— concerned five adolescents who were jailed for years for a brutal rape on the basis of faulty evidence and manipulated confessions (each of the five was told he'd be set free if he implicated the others), even while New York prosecutors overlooked inconvenient evidence that pointed to the real perpetrator: a serial rapist-killer who continued to rape and kill thanks to their oversight.

No regrets

Eventually, DNA tests (as well as the real rapist's voluntary confession) convinced the Manhattan district attorney, Robert M. Morgenthau, that the five young men almost certainly had nothing to do with the crime, and at Morgenthau's request their convictions were overturned. But by then 13 years had passed.

The errant prosecutor, Elizabeth Lederer, remains at her job and refuses to comment on the case— as well she must, since a lawsuit filed against Lederer's office by the Central Park Five is presently pending, and even her teensiest expression of regret for the five lives she destroyed (not to mention the lives wrecked by the serial rapist she enabled to run free, or the public funds she squandered) could be held against her in court. To paraphrase Erich Segal, law means never having to say you're sorry.

Is there no better response to crime? Even judges, prosecutors and lawyers increasingly acknowledge that there is— and it's usually non-legal. Private mediation services now resolve disputes relatively quickly, inexpensively and without washing anyone's dirty laundry in public. Some 40 "community courts" around the U.S. now tackle low-level crimes in troubled neighborhoods by sending defendants to drug treatment, shelter and social services instead of levying fines or sentences in overcrowded jails. A handful of prostitution treatment courts across the U.S.— including Project Dawn Court in Philadelphia— offer, in lieu of jail, a lengthy, intensive therapy regimen for women with multiple prostitution arrests.

Lynne Abraham's secret

During her 16 years as Philadelphia's district attorney, Lynne Abraham maintained a strident public profile as a champion of capital punishment. But no killers were executed on her watch. And two years ago the family therapist SaraKay Smullens revealed in BSR that, shortly after taking office in 1991, Abraham asked Smullens to work with selected first-time offenders from troubled families, especially when their violence clearly seemed like a cry for help.

In these cases, Smullens wrote, Abraham perceived that "the city as well as the offenders and their families would be better served through psychotherapy than expensive, time-consuming incarceration." (Click here.) Who knew?

My "'conscience clause'

My own small contribution to this brave new world was a "conscience clause," which I routinely appended to all my freelance writing agreements. "This agreement presupposes an atmosphere of mutual good will between the parties," it reads, "and presumes that any issues not covered here can be resolved amicably, in keeping with the principles of the Golden Rule."

"This is our mutual protection against lawsuits," I tell my clients. "If I think you're mistreating me, and you can look me in the eye and tell me that this is how you'd like to be treated, then I'll drop my complaint."

This approach has been accepted by all my clients save one— a law firm, whose managing partner astutely perceived my purpose. "If we agree in principle to staying out of court," he remarked, "we'd be driving ourselves out of business."

Modern technology's solution

Let us stipulate (as lawyers like to say) that the evolution of Western law— from the Ten Commandments and the Code of Hammurabi through the Magna Carta, the English Bill of Rights, the U.S. Constitution and 200 years of precedents developed by our courts— is a wonder to behold. Americans' willingness to file lawsuits or criminal charges instead of fighting duels, hiring hit men or burning down each other's homes remains the envy of, say, Afghans and Russians. The "rule of law" that Americans take for granted remains a distant dream in places like China or India. At their best, lawyers are problem-solvers— as we are reminded when we're exposed to groups that have no patience with nit-picky, precedent-oriented lawyers (George W. Bush's inner circle comes to mind).

The fact remains that the law is an inherently coercive tool, at a time when modern technology has developed an unprecedented ability to harness the non-coercive ability to communicate at many levels— from blogging to social networks to phoning radio talk shows and manning picket lines to organizing not-for-profits, protest demonstrations and boycotts of disfavored products. In such a society the relevant question for lawyers is the one raised by my doctor friend: What have you done for us lately?

Klansman's regret

In 1961, at the height of the civil rights movement, a group of black "Freedom Riders" attempted to integrate the "whites only" waiting room of a Greyhound bus station in Rock Hill, S.C. They were immediately assaulted by a group of young white male supporters of the Ku Klux Klan, but in keeping with their philosophy of non-violence, the Freedom Riders declined to fight back, nor did they press criminal charges.

One of those Freedom Riders, John Lewis, subsequently became a Democratic congressman from Georgia. And one of the leaders of that white racist gang, Elwin Wilson, subsequently became so consumed with guilt that in 2009 he phoned a newspaper to confess that he had committed numerous violent acts against civil rights workers back in the '60s.

Wilson traveled to Washington and met with Lewis, who quickly expressed his forgiveness; the two erstwhile adversaries hugged and cried together; and over the next two years the two men made several joint public appearances (once on "Oprah") to promote the ideal of social reconciliation and forgiveness.

Why are such stories so infectiously uplifting, and why does so little about the law seem inspiring today? Do you suppose reconciliation and forgiveness could be taught in law schools?♦


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