Advocacy Requires No Endorsement

On Friday, a person very close to me called to discuss the Bourke v. Beshear decision. Though the call was generally supportive, this person made sure to tell me that they "didn't support the lifestyle" of our homosexual clients, even though they felt the constitutional argument in our case was correct.

That disclaimer, which probably felt necessary to the caller, reminded me that other people may misunderstand the purpose of the legal fight against discriminatory marriage laws like those in Kentucky. Attorney advocacy and legal arguments may seem like personal endorsements of beliefs or "lifestyles" which many people find confusing or offensive. While some attorneys obviously take up causes they personally believe in, the underlying nature of their advocacy doesn't change.

The U.S. Constitution protects important freedoms for all Americans. The First Amendment, for example, protects everyone's freedoms of speech and religious belief. Those freedoms mean some people will say things or believe things that other people find offensive. Some speech and beliefs are so unpopular that only tiny minorities will ever embrace them.

An excellent example is the Ku Klux Klan. An underground group composed primarily of white men, the KKK has been a reliable source of divisive racial rhetoric for decades. The majority of Americans find the KKK's words and beliefs to be deeply offensive, if not dangerous. However, the First Amendment protects the members of the KKK in the same way that it protects everyone else. No matter how offensive, no matter how disturbing, the mere words and beliefs of hate groups like the Klan are outside the realm of government control.

Another, more prominent example would be Westboro Baptist Church. Infamous for protesting the funerals of U.S. service members killed in war, Westboro members are frequently seen on street corners with signs proclaiming "GOD HATES FAGS" and "THANK GOD FOR DEAD SOLDIERS." Without a doubt, American society would be better off if Westboro protesters weren't around, spreading their hateful message. But the First Amendment, which protects you and me, protects them as well.

As fellow citizens, we often obsess over our differences; we focus on the disparate content of our speech, of our beliefs, and of our private lives. Heterosexuals worry that homosexuals will somehow convert their children into a sinister "lifestyle" of sin and immorality. Christians suspect shadowy infiltration of government and social life by Muslim interlopers bent on installing a Shariah legal framework. Wealthy capitalists see a new Bolshevik Revolution any time someone proposes to restructure the economy to increase wages or provide more benefits.

From a constitutional perspective, all of these worries, accusations, and suspicions are mere distractions. What matters is the underlying principle: all are entitled to believe and say whatever they want. Short of causing actual harm or a real threat of imminent harm, all Americans are free to determine for themselves what they want to say, what they want to believe, and who they choose to associate with.

The freedom that Muslims enjoy when they kneel for daily prayers is the same freedom that Christians enjoy when they dress up and go to church on Sundays. The freedom Westboro Baptist Church enjoys when it screams hate in the faces of funeral mourners is the same freedom that Tom Perkins enjoys when he smugly suggests that rich people like him should get more votes. The freedom heterosexuals enjoy when they casually enter the county clerk's office to obtain a marriage license is the same freedom homosexual couples now seek. In these examples, none of these people exploit any kind of "special" rights. The U.S. Constitution protects each of them identically.

The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation, and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

Railway Express Agency v. New York, 336 U. S. 106, 112-113 (1949) (Jackson, J., concurring).

The legal battle for marriage equality isn't about private sexual behavior. It's not about the "lifestyle" of homosexuality. Attorneys for same-sex couples don't endorse the intimate details of their clients' lives any more than attorneys for the KKK endorse their clients' hateful beliefs. Advocating for someone's constitutional rights requires no concern for details such as these.

The legal battle for marriage equality is about self-determination. It's about the right of all Americans to decide for themselves how they will live their lives, free of interference from their fellow citizens and their government. It's about securing "the Blessings of Liberty" for everyone as promised by the Constitution. This principle protects everyone identically, no matter how popular or unpopular their beliefs, words, or intimate behavior may be.

While our democracy incorporates and elevates the will of the majority, it must allow even the most unpopular groups to live free of interference. Those now comfortably in the majority should be mindful and protective of the rights of minorities to self-determine. After all, a majority today could easily be a minority tomorrow, and find themselves the target of hatred and oppression from which they, too, will seek protection. Will those protections, built into the Constitution and enforced by the courts, still be in place when they need them? Or will they have been dismantled at the hands of a majority which may no longer exist and whose members may someday fear for their very survival?

Improving the Law Firm as a Workplace

Before I graduated from law school, passed the Kentucky bar exam, and entered practice as an attorney, I spent ten years of my life as a department manager for two large employers, one for-profit, and one non-profit. A lot of people have had me as their boss. In my time as a department supervisor, I hired, trained, and unfortunately sometimes fired, dozens and dozens of people.

From my past career I learned important lessons: work doesn't have to suck and bosses don't have to be jerks. In fact, believe it or not, your workplace can be somewhere you actually like to be. Granted, being at work will almost always be worse than being somewhere else (with the exceptions of the DMV, prison, and maybe your in-laws' house on Thanksgiving), but being at work doesn't have to be miserable. It really doesn't.

Personnel management is tough. "Herding cats" is nowhere near as difficult as herding people. Human beings are complicated in every possible way; each employee brings with them their own peculiar personality traits, their own work ethics, their own perceptions of what "work" should be, and their own financial worries and demands. There is a reason that universities offer specialized degrees in management and human resources. No good manager ever suffered from too much guidance.

Law firms are peculiar workplaces. Many - even small ones - are extraordinarily complex, lucrative businesses that deal with many millions of dollars and hundreds of clients (or "customers" if you prefer). Law firms don't just consist of lawyers, either. They're staffed by armies of secretaries, clerks, paralegals, runners, and IT staff. These law businesses are not usually run by trained managers, however. They're run by lawyers. And most lawyers didn't go to business school or have long careers as department supervisors before entering the business of the law.

For that reason, law firm management can be a big mess. In the interest of helping attorneys who run law firms, I wrote an article titled Staff Management Tips for the Small Law Firm, which was published in the current issue of the Kentucky Justice Association's magazine The Advocate. Hopefully my experience as a manager can help my fellow attorneys who may not have the same background.

Lawyers: Not Actually Destroying Society

Summarizing detailed academic research for the purposes of a brief news article is always risky business. The sensational claims get the focus while all the detailed background gets lost. You trade the larger context for brevity and page views.

Last week, Bloomberg Businessweek writer Paul Barrett wrote a short summary of a book by Connecticut professor Peter Turchin. The article bears the click-baiting title "Another Reason to Hate Lawyers: They're Destroying American Society." The book, War and Peace and War: The Rise and Fall of Empires, explores the apparent signals societies display when they approach collapse. As Barrett's headline suggests, one of those indicators is a glut of law grads. Or something like that:

So why is it important that we have a multitude of desperate law school graduates and many more politically ambitious rich than 30 years ago? Past waves of political instability, such as the civil wars of the late Roman Republic, the French Wars of Religion, and the American Civil War, had many interlinking causes and circumstances unique to their age. But a common thread in the eras we studied was elite overproduction. The other two important elements were stagnating and declining living standards of the general population and increasing indebtedness of the state.

Elite overproduction generally leads to more intra-elite competition that gradually undermines the spirit of cooperation, which is followed by ideological polarization and fragmentation of the political class. This happens because the more contenders there are, the more of them end up on the losing side.

As Turchin sees it, high numbers of law graduates are a sure sign of "elite overproduction" and the cause of "intra-elite competition," separate elements from stagnation and decline in general population living standards. I see it differently, and I'll use myself as an example.

I graduated from Murray State University in Kentucky in 2001 with little debt (university tuition had not yet become astronomical), and then entered the work force as a smart, white male from a middle class background. In past decades and for past generations, my demographic profile and educational achievements would have guaranteed a steady, upward trajectory of promotions and income. However, I had the misfortune to be building a career in the 2000s as "the bubble" neared its ultimate explosion in 2008. Instead of regular raises and advancement, I, like the majority of my generation, found increasing health care costs, Boomers clinging to jobs for fear of an impoverished retirement, higher gas and food costs, and diminishing if not absent raises. Despite working long hours and doing well as a middle manager for nearly a decade, my career had nowhere to go. By 2009, my standard of living was actually declining the longer I worked.

So I, along with many college-educated Americans in their late 20s and 30s, fell victim to the general decline of living standards that Turchin lists separately from the "overproduction of elites." With few solid prospects despite a solid resume, I made a very tough decision - I decided to enroll in law school.

Law school seemed like a reasonable choice for me. I was an A student in college, and my strengths were writing and presentations. I was a confident public speaker, a thorough researcher, and as a manager, I handled other people's problems with confidence and success. I had always been interested in social issues and politics. While an MBA may have been the more obvious educational step, law school held a certain mystique and promise of financial security that I couldn't pass up.

Ultimately, though, my choice to go to law school was a response to the financial and career morass I found myself in. My income was actually decreasing each year. Raises were a thing of the past. None of my superiors were going anywhere, so there was no upward internal mobility within my organization. And my particular background was increasingly specialized to make applying elsewhere a risky endeavor.

So I went to law school, graduated, and became a lawyer. But this is where I think Turchin gets it wrong. I'm not an "elite." I didn't become one when I graduated from law school, and I didn't become one when I started practicing as an attorney. Law schools don't "produce" elites. For me, law school produced a lower-middle class middle manager with an additional resume item. The "elites" aren't people like me who build a modest career for a few years and then go to law school and amass a bunch of debt, they're the children of privilege and wealth to which the vast majority of us aspire but whose luxuries we flail at helplessly.

Law schools today are generating lots of desperate people who sought the financial security promised by a profession which can't make such promises anymore. Those desperate people, ambitious but swindled by diminishing opportunities and increasing social costs, made a rational choice to improve their own lot. Unfortunately, as the statistics show, that improvement still eludes many. Even the lucky ones who found work as attorneys - such as me - still have to build new careers from scratch. They don't hand you the keys to a free BMW when you walk across that aisle on law school graduation day.

The overproduction of law graduates is a symptom of a crumbling middle class, not a separate signal of societal collapse by itself. After all, law graduates without jobs can't possibly be considered elite - they have no clients, no money, and no social power. They are no different from any other unemployed or underemployed 20- or 30-somethings desperate to receive the security they were promised by their parents and by society when they dutifully went to school for nineteen years of their lives.

And there is no "intra-elite" competition when it comes to law graduates. There is competition among law graduates for existing jobs in what appears to be a shrinking legal employment pie, but to have intra-elite competition, you need actual elites. In our larger society, the competition now is among the underprivileged for the few middle class scraps there are left to claim. Law graduates, most saddled with outrageous debt and with few job prospects, are in a financial situation no one could possibly call "elite." They stand alongside the vast majority of Americans struggling together to succeed despite an ongoing recession, fewer good jobs, dwindling benefits, and stagnant wages.

I suppose the lesson here is: don't mistake symptoms of a problem for its cause. If American society is in fact being "destroyed," it's not being destroyed by an army of unemployed, deeply indebted law graduates whose sole possession is a fancy piece of paper with their name on it. If "intra-elite competition" is a signal of societal collapse, we must look elsewhere to find it.

Do the Math

In my practice, I write a lot of sternly-worded letters, attend a lot of mediations, and engage in a lot of litigation. A lot of these actions are expensive, both for me and my clients. For that reason, an important part of my practice is actually discouraging people from hiring me at all.

There is an incredible amount of injustice in this world. Every single day, innumerable people are done wrong by somebody else. And not just annoyed, but legitimately abused or exploited in violation of the law. Unfortunately, fighting injustice isn't cheap, and it certainly isn't free. Court and litigation costs are high, and lawyers have to pay rent and eat like everybody else. Despite the stereotypes, most lawyers these days aren't rich fat cats who bill $500 an hour and drive Maseratis. Some are, but the vast majority aren't.

So when a person has been wronged, they have to consider the cost of seeking redress. Many times, it's worth it. They've suffered such severe damage to their person or property that the cost of litigation is a mere drop in the bucket. Other times, the law is tricky and success isn't guaranteed, but the potential recovery is so great that they'd be silly not to sue or otherwise press their case.

Other times, however, it's not worth it. Perhaps you got a parking ticket you feel you didn't deserve. Is it worth hiring a lawyer to fight it for $150 when you can just pay $15 and be done with it? Or, maybe you've been denied unemployment benefits and want to sue for them. But if your termination was complicated and the amount of benefits you stand to recover aren't significant, is it really worth paying an attorney thousands of dollars in fees and costs to litigate?

One of the most common situations I encounter involves police officers overstepping their bounds. It is unfortunately not unusual for even routine traffic stops to become violent, and for citizens to accuse officers of yanking them through open car windows, or shoving them roughly against the hood, or otherwise mistreating them. And in a lot of those situations, the police are in the wrong, and have violated someone's Fourth Amendment rights. But you still have to do the math: if you haven't been seriously injured, or the overall circumstances of the stop were generally reasonable, or if you have a severe criminal background that might not make jurors very sympathetic to your plight, it may not be worth it to pursue legal action. The potential recovery is so low that it can't justify the high cost of litigation.

I've made it my personal duty as an attorney to fight injustice wherever I see it. But that duty must be fair to my clients and potential clients. Wasting a client's time and money is also a form of injustice, and that's why I spend a lot of time counseling people not to hire me, and to move on with their lives the best they can. I hate to let any injustice go unfought, but piling another injustice on top doesn't do anyone any good.

All that said, don't let me talk you out of consulting with an attorney when you feel like you've been the victim of someone else's intentional or negligent behavior. You should still seek out legal advice. But when and if you do, ask your attorney up front if further action is really worth it. I promise I'll always be honest with my clients and potential clients when it comes to doing the math.