The Cautious Lawyer and the Risk-Averse Legal Profession

• These generalizations are false. Some lawyers are risk averse and others aren't. You don't meet many risk loving lawyers in your law school class, and you don't know how to identify them when they pass through the law school to meet you, but that doesn't mean they don't exist. Your initial theme is correct in the subjunctive--were lawyers always risk averse, law would not be effective in making social change undesired by the ruling class. Fortunately, we don't live in the subjunctive.

Risk-averse by nature

• But, because one wouldn't expect to look to the law firms that serve the business interests of the ruling class for the risk-taking work of pressing for social justice, your analysis actually points away from your conclusion, and towards a proposition with a very different valence. You are providing reason to believe that the ruling class is primarily served and defended by timid lawyers.

Risk-averse by conditioning

The culture of law school and the substance of the legal profession reinforce these risk-averse tendencies. Risk-averseness is engrained in the law school curriculum and in the culture of law school. The 1L curriculum, one that has changed little over the years, consists of an array of common-law courses. Students are not taught how to use the law as a dynamic tool for social change and judicial decisions are analyzed without much attention to either context or to aftermath. Rules and doctrine are the focus. Policy and innovation seem to be afterthoughts, only discussed after students extract the rules from the cases.

Risk-averseness also pervades the law school culture. The custom seems to be that most 1Ls blindly follow what the older and wiser 2Ls tell them. If a 2L tells you to “submit your summer associate firm applications by December 1st or else,” you’d better do it. If a 2L tells you to buy the Chemerinsky treatise for Con Law, head to the nearest bookstore before you find yourself with a dreaded B minus. This risk-averseness is evident during exam time. Students who, in September were comforted by the prospect of that guaranteed “B,” now find themselves locked in the library for 15 hour days “just in case.”

The risk-averseness bred in law school then directs the prospective lawyer into those corners of the profession which offer the perceived guarantee of success and good fortune. Once nestled at their Big Law jobs, many lawyers eschew the prospect of using their license in ways that could uproot the comfy lifestyle that life at the large firm has created for them. At this point, caution is the name of the game and staying put seems to be the path most traveled.

The Social Effect of Risk-Averse Lawyers: How they are hurting society

Lawyers who are cautious by nature and risk-averse by conditioning are afraid to be innovative; few start their own firms or enter non-traditional legal fields. Many law students choose careers in Big Law which offer the prospect of material privilege, instead of pursuing more entrepreneurial, innovative, or public-interest minded careers that lack this guarantee. Many might choose this path because it is tried-and-true, and thus has obvious appeal to the cautious lawyer. In addition, because the culture of law school doesn’t prepare the lawyer for careers other than one in Big Law, the lawyer doesn’t know how to go about using the law in innovative ways. The road of law school seems to lead to only one destination. And to the risk-averse J.D., it is an alluring one.

Once nestled in his high-prestige position, the lawyer is further prevented from using the law in socially innovative ways. Now employed at the “Firm” and working for the “Partner,” the lawyer is cabined into certain practice areas and limited to certain clientele. These lawyers, now well-adapted to the comforts of material success, refuse to put their careers on the line to pursue an avenue that is more innovative and risky. As Veblen writes, the leisure class is marked by social conservatism, a feature that comes to be recognized as a mark of respectability, while innovation comes to be seen as improper, even “vulgar.” (199, 200). He says that because “the exigencies of the general economic situation of the community do not…directly impinge upon” the leisure class, that class becomes the barrier that retards “social evolution.” (198).

Conclusion

The risk-averseness that pervades both legal education and the profession at large creates non-entrepreneurial lawyers who don’t know how to use, or are discouraged from using, the law in innovative, socially-productive ways. The lure of guaranteed material success induces the cautious individual to go to law school. The culture of law school itself conditions the prospective lawyer to choose the most tried-and-true path, one that the cautious law student finds compelling. Once on this path, the lawyer disposes of his ability to use his license in socially innovative and productive ways. This cycle, effectively, reduces the law’s ability to effect dynamic change for the betterment of society.

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Lawyers are Risk-Averse both by Nature and by Conditioning

Lawyers are risk-averse both by nature and by conditioning. They are risk-averse by nature because the legal profession attracts the individual who is, inherently, cautious and risk-averse. They are risk-averse by conditioning because law school and the profession itself promote risk-averseness. The cautious lawyer and the risk-averse legal profession produce an adverse societal effect – they preclude the use of the law as an innovative tool for social change.

• Some. But that's not all it attracts. Your "because" is plainly insufficient. You're setting up an argument about what must and what can't--conclusions which logically require premises quantified by "all" or "none." And such premises can't be shown on this subject. Some lawyers are corruptible time-servers and some lawyers are Sir Thomas More or Sir Matthew Hale. Sir Francis Bacon is both, and he's not the only one. People are complex. This "analysis" is merely simplistic.

• If you think history is a subject of study that breeds risk-aversion and conservatism in policy-making, you need to explain why. I don't think so, and I know a little history.

The law is depicted as a static force and a judicial decision is analyzed without much attention to either context or to aftermath. Rules and doctrine are the focus. Policy and innovation are afterthoughts (both in the casebooks and in the lesson).

• The first part of the first sentence seems to me patently false, but perhaps you could demonstrate it if you didn't just assert it. I don't think the second and third sentences are true of my conservative colleagues who have a prevailingly economic view of the law's subject matter, let alone those who don't come from that background. But as you have not been through law school yet, perhaps with less extensive information you can see the subject more clearly than I do. It would be good to have the benefit of whatever evidence you do have. Even a little.

Risk-averseness also pervades the law school culture. The custom seems to be that 1Ls blindly follow what the older and wiser 2Ls tell them. If a 2L tells you to “submit your summer associate firm applications by December 1st or else,” you’d better do it. If a 2L tells you to buy the Chemerinsky treatise for Con Law, head to the nearest bookstore before you find yourself with a dreaded B minus. This risk-averseness is evident during exam time. Students who, in September were comforted by the prospect of that guaranteed “B,” now find themselves locked in the library for 15 hour days “just in case.”

• This may be a statement from personal experience, but it can't possibly be uniform. Not only doesn't it describe what I was like in law school, or what my friends among my colleagues were like, it doesn't describe all the students I know now. So it might be more useful to focus on the differences between those whom it does and does not describe, than to imply it describes everyone or even most people.

• This doesn't even describe all the lawyers I know in all the firms you think you're talking about, let alone all the other lawyers I know who don't work there. So maybe, once again, we should try to get away from the argument that this is the profession, to a consideration of the extent to which this is where some potentially valuable people unfortunately wind up.

• Nonsense. I've been using law in socially innovative ways throughout a practice extending twenty years, and I have used foresight, caution and meticulousness, among other qualities, in order to make my risks, large as they were, pay off for me. Your antinomy between caution and risk would appall any military commander worth the cost of his ammunition and worthy of the lives entrusted to him, while the opposition of foresight to risk would make all leadership worthless.

Lawyers who are cautious by nature and risk-averse by conditioning are afraid to be innovative; few start their own firms or enter non-traditional legal fields.

Many graduating law students choose careers in Big Law which offer the guaranteed prospect of material privilege, instead of pursuing more entrepreneurial, innovative, or public-interest minded careers that lack this guarantee. Many might choose this path not because they want to, but because it is what everyone does. It is a path that is tried-and-true, and thus has obvious appeal to the cautious lawyer. In addition, because the culture of law school doesn’t prepare the lawyer for careers other than one in Big Law, the lawyer doesn’t know how to go about using the law in innovative ways. The road of law school seems to lead to only one destination. And to the risk-averse J.D., it is an alluring one.

• "Many people around here are conformists." Now you don't need the rest of the paragraph. This is how papers become too long. You are spelling out obvious consequences of ideas you haven't carefully scrutinized, headed for a conclusion that won't work for you, taking much too long to get there. Even when writing the first draft you should have felt the weariness of this work overcoming you, and moved to reconsider the plan that was bogging you down.

Once nestled in his high-prestige position, the lawyer is further prevented from using the law in socially innovative ways. Now employed at the “Firm” and working for the “Partner,” the lawyer is cabined into certain practice areas and limited to certain clientele. These lawyers, now well-adapted to the comforts of material success, refuse to put their careers on the line to pursue an avenue that is more innovative and risky. As Veblen writes, the leisure class is marked by social conservatism, a feature that comes to be recognized as a mark of respectability, while innovation comes to be seen as improper, even “vulgar.” (199, 200). He says that because “the exigencies of the general economic situation of the community do not…directly impinge upon” the leisure class, that class becomes the barrier that retards “social evolution.” (198). According to Veblen, the leisure class’s role “in social evolution is to retard the movement and to conserve what is obsolescent.” (198).

Another wasted paragraph, because the Veblen point can be made in a sentence. And it will only apply to some lawyers, leaving all the clearer the question ("what makes the difference?") that you should be writing about.