The Unique Role of the Lawyer

"Being Lawyerly"

A Balance

Finding the balance is a difficult feat. Part of it is using common sense - there are words to avoid and bad situations to bring up controversial issues. Part of it is scrupulous research - fully learning about issues before making assertions about them. And part of it is being burned - making inappropriate statements and suffering the consequences. No one wants to be remembered for making an improper comment. But very few people have effected real change by being so careful they refuse to call out when they see injustice and skirting the difficult issues for fear of being offensive. I would much rather make progress, even if it involves a few bumps and bruises along the way, than get nowhere at all.

This is not convincingly argued. No evidence is offered in support of the original implication that it is "being lawyerly" that reduces the effectiveness of lawyers. The argument is puzzlingly divided, without acknowledgment of the division. "Lawyerly" communication is first said to irritate others and then proposed as the motivation, or at least the reason, for individual lawyers' neutrality in the face of injustice.

No reason to believe either of these propositions, and they're far from self-evident. That lawyers are detested for being too polite or too cautious is not my experience, and I doubt it's the experience of anyone who's held a license for a decade, two, or three. Lawyers, almost always other peoples' lawyers, are disliked for being arrogant, opinionated, pushy, and—in their own opinions—entitled. This stereotype may be no more accurate than the one you present, but it could hardly be more different.

That lawyers are motivated not to interfere with injustice by "political correctness," here defined as though it were a reluctance to offend, also seems to me unestablished, to put it mildly. The most important reason lawyers don't interfere with injustice is that injustice pays them to work for it, which they happily and contentedly, or at least unhappily and guiltily, do. The next most important reasons are all the same ones that keep laymen from working against injustice: habit, fear, indifference, dissociation, and various forms of lack of good will. By any standard of measurement, I know a large number of lawyers, and I can't think of any who are restrained from doing good primarily by an excess of verbal timidity.

The concept of "striking a balance" strikes me as nonsense. Though I sometimes use impoliteness or vulgarity in my work, there's nothing whatever that requires resort to particular verbal tactics in order to deal with injustice at any level, nor does the employment of verbally aggressive tactics in any way necessitate or excuse irresponsible legal imprecision. The suggestion that the primary difficulty in making a commitment to moral engagement in one's practice is gauging the degree of social offense one is willing to impose through one's words rings hollow for me: I can think of many heroic lawyers, particularly African-Americans practicing in hostile jurisdictions under constant threat from the powers of white supremacy, who have spent entire careers in constant struggle for social justice without ever making an undignified, let alone an offensive, statement.

Then there's the peculiar use of "political correctness," to which I've already referred. That phrase is usually employed on the American Right, where it seems to me to express the linguistic equivalent of white skin privilege: resentment at the "sudden" discovery that the traditional vernacular taught by the WASP Ascendancy or permitted by it to the white working class is fraught with white supremacy, patriarchal misogyny, anti-Semitism, homophobia, anti-atheism, and many other bigotries. Two positions develop as a result of this "shock" and "resentment," as previously-marginalized people gain recognition of their dignity and equality. Newly empowered, these people begin to demand relief from the constant repetition of these bigotries with which they feel literally assailed. At the same time, groups afraid of the loss of economic and social advantage begin to insist on their freedom to offend, maintaining—Arnold would say—precisely the least inclusionary of their creeds in order to maintain cohesion in a shrinking group feeling the threat of being overwhelmed or dissolved. (Virulent nationalisms of various kinds boil up in dissolving multinational empires for this same reason.)

None of this has anything to do with your actual subject, for which "political correctness" thus seems to me a poorly-chosen analogue rather than the mot juste. You are talking about inhibitions against expressing dissent from the actual dogma of power. Those who disparage political correctness are unhappy with stigmatization of those who want to call women c***ts or black people n*****s; it is another sort of conformism altogether that silences the expression of doubts about capitalism, or the hostility of the rich to the needs of the poor, or the sham of democracy enacted in an empire under aristocratic control. Efforts against bigotry may be resisted as thought control, and while I admit to being unsympathetic to the enterprise, it won't help to confuse all forms of social control over speech without regard to their generality or context.

In the end, I think it would be helpful to go back to the outline and ask what the real subject of the essay is. If it is an essay about what prevents lawyers from achieving their potential in agitating for social change, a shift of emphasis from language to action, downward from the verbal superstructure to the material base (to risk an idiom), might be helpful. If it is an essay about lawyers' talk, a further reading in Lawyerland might prove a useful corrective.