TONE POEM FOR THE DEAF
Sometimes my client's case is heard last. Waiting, I watch the courtroom parade: embattled lovers, siblings snatching deceased parents' assets, deadbeat contractors, shoplifters, deviants, alienated friends. Judges brave the human welter, then decide. The litigants don't feel heard or understood, though many judges listen attentively and respond empathetically. People sing sad songs, but the bench cannot quite catch the beat. It has always been so. Cicero (Roman, 1st century B.C.) captured the problem: summum ius, summa iniuria (On Duty, §33). This Latin phrase can be loosely translated, "The most rigorous law creates the greatest injustices." Cicero's observation makes sense. A client's lawyer translated her personal problems into law's ancient rubric. A judge mulled the client's life in that inscrutable language. Afterwards in the hall, her lawyer unpacks what the judge concluded. Howling ensues. Algernon Sidney (English, 17th century A.D.) said: "The law is established, which no passion can disturb. 'Tis void of desire and fear, lust and anger. . . 'Tis deaf, inexorable, inflexible" (Discourses concerning Government (1698)). Law seems deaf, even when judges strain to hear.
For many years I have declined to address the Bar (what lawyers call themselves collectively). Speaking invites dissent, which lawyers are trained to gush. Prodding American jurisprudence feels pointless. Institutional inertia seems inexorable. Could anything I say help? Conversations flower in soils of shared values. That earthy "we" is eerily absent among lawyers. Most lawyers dislike their work, if you believe statistics. Attorneys suffer high risk of alcoholism and suicide. The sirocco of court houses fans their dark flame of legal despondence. So I have stood mute. I have practiced my craft, and grieved.
When lawyers try to fix Law, they offer what they know: more words, expanded rules, additional procedures. They offer more, that is, of the same. Attorneys, in effect, douse their fires with gasoline. Lawyers, being smart, know a lot. They resist correction. Attorney "knowledge" is concrete that defies jackhammers. Adversarial proceedings demand healthy (extravagant) egos and an ability to stonewall, to ignore criticisms. These traits make many lawyers deaf--about law, about themselves. A sixteenth century English proverb runs: "There's none so deaf as those who will not hear."
Why, then, break silence? Why sing for the deaf? The medieval walls of our English jurisprudence trap a horde of uncomprehending litigants. They may find relief in hearing it said, "Our justice system is broken." Attorneys who share my doubts may find solace in hearing it said, "Our justice system is broken." Perhaps, then, some of us can admit our part in the suffering our legal process worsens. We who share these concerns might even talk face-to-face; the timid among us could email. In the end, breaking silence may shore up my own sanity, which is ever eroding. So, I sing for the Bar this tone poem for the deaf.