AN ESSAY ON PROFESSIONALISM:
THE PORTRAYAL OF LAWYERS IN POPULAR FICTION
By Robert A. Creo, Esq.
I. MY JEREMIAD
"Where have you gone, Atticus Finch...
A profession yearns its soulless heart for you . . ."
Things have not changed much: the average American has little personal contact with the profession. In the best seller, A Civil Action, Jonathan Harr follows a toxic dumping case filed in 1986 by residents of Wolburn, Massachusetts against Beatrice Foods, W.R. Grace and Unifirst. One of the working class plaintiffs is Richard Aufiero. Harr notes "everything Richard Aufiero knew about lawyers he'd learned from television and the movies." Even in the new era of Court TV, fictional depictions of the legal profession influence public attitudes about lawyers.
As a young lawyer, at social events, I proudly looked people in the eye when responding to the inevitable query "what do you do?" I raised my voice a notch, stating that I was an attorney. I expected, and usually received, respect and approval from their word or facial expression. Ten years later, with the profession under attack and in jeopardy, I am ambivalent. Should my answer be in the form of a question: a guarded "why do you ask?" or "you tell me first" as an evasive or delaying tactic. I was seldom ready for the accuser, often mumbling some apology or explanation in response to any mocking. Many times I went for the confusion route: "I'm an arbitrator" which would permit me to obscure my true identity. More recent years transformed me into a "recovering attorney," leading to discussions of whether that was a twelve step process or just wishful thinking.
As our profession enters the 21st Century, we should "take back" our collective self-respect and engage the cynics with a positive account of our professionalism. I now smile when I inform inquirers that I am an attorney who is called upon by my peers to practice as an arbitrator and mediator. Public affirmations of the honor and integrity of the profession enhances our professionalism. I acknowledge the shortcomings in the legal system and the practice of law while emphasizing our collective efforts for improvement. All attorneys should certainly explain to the uninformed that the practice of law is not how it appears in the media.
Has the fictional lawyer suffered an erosion of ethics and status? Perry Mason only defended the innocent winning his cases by hard preparation, intelligence and skill; admirable traits which broke the villain on the witness stand under Mason's cross-examination. Perry may have been argumentative in the form of his questions; he may have badgered the witnesses, but he essentially worked within the rules. So did his hapless opponent, District Attorney Hamilton Burger. Both were honorable as lawyers and citizens. Perry Mason, created by author Errol Stanley Gardner and identified with actor Raymond Burr, reflects the honor and esteem the profession enjoyed merely a generation ago.
My lament focuses on negative images. Topping the best seller lists is the "legal" thriller. The books of John Grisham are everywhere, littering airplanes, beaches as well as the minds of those who receive their facts, who confirm their own perceptions from fiction. Where have all the heroes gone?
II. PLOT SYNOPSIS:
JOHN GRISHAM'S THE RUNAWAY JURY
Nicholas Easter, a law school drop-out, has literally preceded the litigation around the country by moving to the venue of the next trial. Easter moves in ahead, hacking into the computer system of the court house to be placed into the jury pool under an alias. He failed to get on the previous juries but is Juror 11 here.
Easter engages in a series of manipulations, crimes and deceits, including poisoning Herman Grimes, jury foreman, the day deliberations begin, to become the Foreman and leader of the jury. He and his co-conspirator and lover, Marlee, scam Fitch into wiring $10 million overseas as a bribe to return a verdict for the defense. They double-cross Fitch by convincing 9 of the 12 to bring back a verdict of $2 million compensatory and $400 million punitive damages. With the $10 million, Marlee plays the tobacco stocks on the day the verdict is announced, netting $ 8 million more profit; Marlee and Easter wire the $10 million back to Fitch, with the ending of the book being a comment by Marlee " And remember , Fitch, next time you boys go to trial, we'll be there."
PLOT SYNOPSIS:
HARPER LEE'S TO KILL A MOCKINGBIRD
The lonely and outcast Mayella befriends Tom over the course of a year by asking him to help with chores by stopping him as he walks home past her house after work. Mayella has numerous siblings which she cares for while her widowed father, Bob Ewell, drinks away the county assistance stipend. Mayella sends the youngsters to town one day so she can lure Tom into the house to do a chore; Mayella throws herself at Tom despite his resistance and pleas to stop. Bob Ewell suddenly appears to find Mayella embracing Tom and a story is concocted that Tom has beaten and raped Mayella. Bob has been abusive and having sexual relationships with his daughter. Tom has a crippled left arm and could not have caused the injuries to a resisting Mayella in the manner she recounts at trial..
Atticus, to community scorn, mounts a vigorous defense. The night before Atticus stands a vigil at the jail, and with the help of Scout and Jem, turn back a lynching mob. Both the white and black communities turn out for the trial. Surprisingly, the 12 white males engage in lengthy deliberations before returning the anticipated guilty verdict. The Code of the South does not permit the legal system to accept the word of a black over a white. While Atticus appeals, Tom is shot and killed trying to escape prison.
Bob Ewell vows revenge on Atticus for publicly humiliating the Ewells in court. He attacks Jem and Scout, one night on their way home from a Halloween event at the school. The reclusive Boo Radley comes to their rescue and Ewell is killed in the struggle. Sheriff Tate arrives and closes the investigation by concluding that Ewell fell on his own knife.
III. THE FICTIONAL LAWYERS OF GRISHAM AND LEE
"Our father didn't do anything. He worked in an office, not a drugstore. Atticus did not drive a dump-truck for the county, he was not the sheriff, he did not farm, work in a garage, or do anything that could be possibly the admiration of anyone."
Slowly their respect for Atticus grows through the bonding and understanding created by the adversity of the case.
The children, under community pressure, doubt their father. Atticus answers their question about why he accepted the court appointment to defend Tom Robinson, a black male accused of raping a white female, by saying:
"Because I could never ask you to mind me again. Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects him personally. This one's mine, I guess. You might hear some ugly talk about it at school, but do one thing for me if you will: you just hold your head high and keep those fists down. . . . "Atticus, are we going to win it?" "No, honey." "Then why ----" "Simply because we were licked a hundred years before we started is no reason for us not to try and win." Atticus said."
The night before the trial Atticus sits alone in front of the jail knowing that a lynching attempt is likely. Although Atticus is a crack shot, he is unarmed and the only weapon he brings is his ability to reason and argue. As the mob confronts Atticus, he is calm in his determination not to turn Tom over. Scout and Jem, on a search for their father, unexpectedly appear and intervene. Scout, exercising the wisdom often only found in children, challenges the white crowd by talking directly to individuals by name; she acknowledges them as people separate and distinct from the mob. Scout forces them to confront their individuality, causing them to retreat and disband to their own homes. Scout and Jem journey from ignorance to an admiration and understanding of Atticus the lawyer, father and legislator.
Atticus Finch lives his professionalism. He is true to his ethics and values, declining to create a dichotomy between work and personal life. The Finchs' neighbor, Miss Maudie, recognizes this and pays Atticus, and the profession, the highest compliment: "Atticus Finch is the same in his house as he is on the public streets."
The willingness to have two faces, two lifestyles, seduces many lawyers. Unlike Clark Kent changing in the phone booth, or each of us putting on our own "uniform" to become Super-Lawyer, there is no daily transformation for Atticus. Atticus has but one face. Professor Thomas Shaffer of the University of Notre Dame Law School has written extensively on the interplay between legal ethics and morality. Professor Shaffer discusses the ethical issues in terms if it is possible to be a good lawyer and also to be a good person? For many attorneys life is a duality and the abyss threatening to swallow their personal humanity must appear to widen each day.
Professionalism for the Finchs of the legal world is honoring the spirit as well as the letter of the rules. The mark of the professional is to serve as an officer of the court with an understanding that maintaining the integrity of legal system is more important than obtaining a favorable outcome in a particular case. Vince Lombardi's exhortation that winning is the only thing has no place in a society based upon a system of justice. Lawyers stretching or breaking the rules breed a cynical disrespect for the rule of law. The public should honor the role of lawyers as gatekeepers, guardians and guides of an orderly and just society, but not do so until they believe lawyers act honorable and uphold their ethical codes.
In the heat of the adversary contest, when faced with a difficult choice, we might ask ourselves what Atticus would have said and done. I envision him with all his gentility and containment as I try to translate his professionalism into responses that I can accept and respect for myself.
Atticus believes in the system but understands that law, and its settlement agent, the jury of peers, will impose the mores and values of their own community. The Code of racism was the law of the deep South in 1935 and had not changed much by 1960. Atticus, with his just cause, had hoped that he could open a crack in the system, even for a brief moment, for some light to escape into the minds of the white community. Atticus, in his closing, implores the jury to be just.
"But there is one way in this country in which all men are created equal--there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P. court in the land, or this honorable court which you serve. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal. "I am no idealist to believe firmly in the integrity of our courts and in the jury system---that is no ideal to me, it's a living working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty."
Atticus appeals to the idealism of the jurors; to the individual conscience which forms the foundation of a system of law. One's individual duty is to be just and exercise that will in a collective righteousness.
The two communities, both white and black, eagerly await the verdict. Atticus loses. The jury applies the collective will and values of the ruling class. Individual free will fades into the legal mob of the jury room. It is a mob because no one individual is accountable or responsible for his actions. The strength of the system (law and justice applied in single instances in a collective manner by members of the community) is ultimately its weakness. Atticus always knew that the racism of more than 100 years emerge triumphant. Atticus, nevertheless, fights his client's battle at great sacrifice and risk, without regret. Even in defeat, Atticus was hopeful that they had an excellent chance to win on appeal. The community expected a quick verdict against any African-American accused of a crime against a white woman in after minutes, not hours, of deliberation. The jury was out far too long; Atticus created some doubt, a true debate, about Tom's guilt or innocence.
John Grisham started his career as a writer in 1988 with A Time to Kill. His work also portrays southern tradition and values. This first book, also about racism, in many ways serves as an unauthorized sequel to To Kill a Mockingbird. It is by far and away his best work. There we see the first of Grisham's unconventional lawyers, Jack Brigance, a struggling sole practitioner and his mentor, a retired alcoholic. A black man publicly shoots two white men who have raped his young daughter and wounds a deputy escorting them to court. The enraged father knows the racist Code of the South will result in an acquittal of the white defendants. Despite the irrefutable evidence of guilt, Brigance takes the case of the father.
By a clever reversal of roles, Brigance wins an acquittal by having each of the jurors close their eyes as he describes the scene of the abduction and rape of the child. He then challenges each juror to imagine what their individual verdict would be if the child had been white, the rapists black and the parent seeking his own justice, white. Brigance, like Scout at the jail house doorway, breaks through the prejudices by framing the choices for the jury on an individual rather than a collective basis. Brigance challenges each juror to take personal responsibility and accountability. Grisham's South has evolved; a legally guilty African-American male goes free after exercising vigilante justice on native rednecks.
Grisham, unfortunately, goes south himself in his recent portrayal of lawyers, legal ethics and the court system. His protagonists, disenfranchised lawyers or law drop-outs, are apparently "mad as hell and not going to take it any more." Greed motivates the execution of their "ends justify the means" philosophy. The villains are generally old line law firms and greedy, corrupt Corporate America. The protagonists' guillotines fall on the collective neck of the profession too. Almost every lawyer in his recent books act unethically. There are few lawyers acting in a positive manner: in the last two, The Rainmaker and The Runaway Jury, there are none. Not a single lawyer or judge emerges as an honorable voice for the profession or the public.
Although Grisham attempts to instill traits of wholesomeness and the values of Heartland America in his young lawyers, little introspection or self-doubt occur as they ruthlessly pursue their ends without regard to criminal law, canons of ethics or common civility. Grisham's lawyers are not presented with a true Hobson's choice: to follow the spirit of the rules and maintain your ethical compass; or to follow the law's letter and obtain an advantage for your client. They have no concern about the degeneration of professionalism. No choices here: the Grisham heroes personally rewrite the few rules they do not covertly violate.
One commentator, Terry K. Diggs, an Adjunct Professor at University of California Hastings College of Law, notes:
"In Grisham's world, as in Capra's, law is too much with us, with every operation of law creating yet another obstacle to America's righting itself. Thus, Grisham's heroes . . . do justice by engaging the law in its lair and vanquishing it. Yet Grisham's schemes often reveal something that is genuinely frightening: a neo-populist delight in rule-bashing that ignores the inevitable result of lawlessness, the end of due process for everyone.
While the subversion of legal rules in Mr. Smith Goes to Washington has been denounced as a "horrible hysterical reduction of the U.S. Senate to grotesque game show," The Runaway Jury's cheerful endorsement of a caper that razes the American jury system is no less jarring."
I suspect that Grisham, who still tries cases (e.g., a Jones Act case to a successful six figure verdict in 1996) would be mortified if any of his readers assume he practices law like his protagonists. Diggs concludes that Grisham "sells law short" and his characters "suffer not because they have too much law, but because they have too little."
In Grisham's view, the system is askew; justice can only be achieved by being deceitful and wily. His characters have a mentality of "I practice therefore I am corrupt" no matter how minor their role in the story. Herein lies the ultimate corruption of the ideal of a lawyer as a heroic figure. His heroes, Rudy Baylor, Esquire (The Rainmaker), Mitch McDeere (The Firm) and Nicholas Easter, go for the cash and ride off victorious to an utopian existence in a place where there is no rule of law. Winning is out-corrupting the system and walking away from the wreckage. The jury of Atticus Finch may be considered to have dispensed its ruling-class-only justice under protection of the collective will, but Nicholas Easter becomes the Don of the jury, spreading the cancer of corruption from within as the leader of the pack. The rationalization that the system, the profession and corporations are all corrupt creates the fictional glue which holds the Grisham paradigm in the grip of popular culture.
Atticus Finch understands the problems inherent in the legal system. Atticus knows that the weak and disenfranchised, even when represented by the best counsel, are often crushed by litigation. This is true regardless of how just the cause.
To Kill a Mockingbird ends with Bob Ewell, the abusive father of the false accuser of Tom Robinson, attacking Jem and Scout on Halloween. Boo Radley, the reclusive neighbor of the Finchs, rescues the children. The dead Ewell is found by Sheriff Heck Tate with a kitchen knife in his belly. Atticus insists on a public handling of the incident when he concludes that Jem killed Ewell in a case of self-defense. Atticus gives tacit consent to the initiative of Sheriff Tate to close the death of Ewell by concluding that he fell on his own knife when he comes to the understanding that it must have been Boo Radley, not Jem, who stabbed Ewell during the struggle. Atticus stands aside while Sheriff Tate protects the reclusive, but kind and slow, Boo Radley from being unwillingly thrust into the public eye. Even though Radley acted in a legal and reasonable manner to protect Jem and Scout, Atticus yields to the practical solution provided by Sheriff Tate. One may contend that Atticus breached his duty as an officer of the court by not coming forward with his belief that Radley placed the knife into Ewell. Atticus, however, had no first hand-knowledge of the incident. The community holds the Radleys I high esteem while the Ewells are outcasts of proper society. Radley would probably not be prosecuted, let alone convicted. Atticus maintains his her statis.
Grisham has lost his roots. Perhaps Grisham, with his dim view of lawyers, would re-write To Kill a Mockingbird, by having Atticus orchestrating a cover-up without the knowledge of Sheriff Tate! I say this because I wonder if it is not coincidental that the antagonist in The Runaway Jury is named Fitch, just a letter "n" away from the good family name of Atticus.
Hollywood Grisham, like his recent characters, has been seduced by big bucks rather than following the traditional approach of having his characters fall and then choose a redemption based upon principles and values. Heroes affirm their "character" by refusing to lower personal standards despite strong societal currents threatening to overwhelm them. Atticus Finch inspired many of my generation, leading us to the practice of law; if Grisham does the same, we are all in serious trouble.
As I surf the channels seeking reruns of Perry Mason, I hum, to the tune of Simon and Garfunkel's " Mrs. Robinson" . . . "Where have you gone, Atticus Finch . . . "
This article has its genesis in a MCLE Ethics program conducted by Cynthia Reed Eddy, Esq. of Cohen and Grigsby, P.C. and me for the Allegheny County Bar Association. We are co-authoring an expanded version to include Scott Turow and other writers. I gratefully acknowledge her contribution. I also acknowledge and thank Andrew N. Farley, Esquire, Colleen C. Malley, Esquire, Jessie Smith, Esquire and Holly Stabile, Esquire for their review and comments. © 1997 by Robert A. Creo. All rights reserved.