Lawyers Aren't Evil—Fairness and Morality Aren't Their Job

When I was young and naive I used to think the justice system was about fairness and morality.

My first exposure to the opposing view was when several of my college friends became lawyers. They were taught that laws were more like rules of a game. Four of a kind beats a full house, but there's no morality to it. I remember one lawyer arguing that morality and fairness are irrelevant; all that matters is passing some kind of judgment so that people can get on with their lives. This view just felt wrong to me, and it helped me understand the reputation that lawyers have for being slimy and evil.

My time at NetApp has resulted in an extensive legal education. Here's a blog entry about the time I violated SEC insider trading rules. Another time I was sued for sexual harassment, violation of the California constitution, and intentional infliction of emotional distress. (I wasn't alone: the suit was against all of NetApp's founders, officers, VPs and board members. Settled out of court. The alleged harasser no longer works at the company. The lawsuit included the rest of us just to get our attention. It worked!) At least two other times I've been accused of stealing another company's intellectual property, again along with a long list of people. (We didn't do it.)

My new slogan: Success breeds litigation.

I have a new respect for the lawyer's point of view: Sometimes what matters most is getting to a conclusion so that everyone can move on.

Suppose you accidentally bought a stolen TV. Let's say you bought it at a reputable store, so it's not like you could have known, like if you'd gone to a bad part of town and gotten 80% off from a guy selling TVs out the back of his van. A year later, the original owner somehow finds you, and he wants his TV. You didn't do anything wrong, so you think the old owner should leave you alone and go hunt down whoever stole it. But he argues that he didn't do anything wrong either, and since the TV was his first, he wants it back. For completeness, let's just say the store where you got it has closed down, no forwarding address.

Two people are in a dispute, and as a society we need a process to determine who gets the TV so that everyone can move on with their life. Laws are not about right and wrong. Laws are simply the operating system of the country.

That's all fine for this example, where neither person did anything wrong, but what if our moral intuition says one person was good and the other person evil. Then shouldn't we worry about right and wrong? The lawyer response is, "That's not my job. It's Congress's job to pass the laws. As a lawyer, all I care about is what the law actually says."

To put it in computer terms, laws are the program, Congress is the programmer, and lawyers, judges and juries are the CPU whose job is to execute the program. If there are bugs, blame the programmer, not the CPU. That blue screen isn't Intel's fault. Based on this analogy, I have come to agree with lawyers that their job is not to worry about fairness and morality.

Still, I think it's wrong if nobody worries about "moral bugs" in the legal code. It may not be the lawyer's job, but if the legal system veers too far from people's moral intuition, then I think that society runs into trouble. Perhaps one problem is that we have too many lawyers in Congress. As lawyers they were able to legitimately ignore the moral implications of laws, but that left them ill prepared for the moral debugging that should be part of their job in Congress.

I think there's also an important lesson for companies: The law sometimes matters less than the judgment of the public. Even if a company follows the strict letter of the law, it will run into trouble if it violates the moral intuition of its customers, shareholders and employees. Saying "what I did was legal" is not always a good defense.

Comments

[Ravi Char]

Nice post on this one. The content quality of your post is top notch. I look forward to your future posts.

[James Katt]

This is a bad analogy.

CPUs do have bugs. Often they are called errata. They have to be programmed around in order to get a program to work correctly.

Thus there are BAD CPUs which crash GOOD Programs. Intel's Pentium chips for example had a lot of bugs which compilers had to work around when generating the program.

CPUs may also be programmable - having microcode which can be embedded in the chip.

There are bad CPUs and good CPUs. The bad ones are killed off and replaced by the manifacturer with a new generation of CPUs - which also have new bugs but are hopefully better.

Too bad Lawyers can't be killed off too when they are bad. And there are many bad lawyers who have caused the U.S. to be a highly litigious society.

Yes Lawyers have much to blame for.

Many judges and congressmen ARE lawyers. They are not automatons which your analogy tries to make them out to be. They have their share of the blame since they have CHOICE (i.e. are programmable) too.

[Steve]

By analogy, my father many years ago mused that laws could be written in "Legalese", which would be the legal program language, as finely defined as a programming language, and could brook none of the legal arguments we see being tossed around.

Steve

[David]

I think the analogy is faulty for a different reason. I think of the State as a really big mainframe, call it Big Iron on steroids. There needs to be a serious division of labour for it to work. At the top are Parliaments or legislatures, who are like systems programmers. They write the basic framework under which the mainframe behaves. Then there's the executive, which is like the system administrator and their staff: they go around making sure the policies are adhered to, investigating wrong doing and resource hogging, etc. What's the judiciary all about? The judicial process is par of the allocator mechanism of the mainframe. Instead of allocating computer time or memory it allocates something abstract yet very important called legitimacy. If you win a trial, then you get your way, to the extent you won. Now, there are users on the mainframe that are the citizens, but they interact with the mainframe from the edges, let's say. They have very few privileges and they just do standard stuff like data entry clerks, for instance filling up their tax forms. What happens when a simple user wants to invoke the allocator? They can't just do it by themselves, they have to use an intermediary, because the way the allocator works is high magic and they wouldn't know where to start. They wouldn't know what commands to invoke, and depending on the OS you're running (Common Law 7.0 or Civil Law 3.1) they might not even have privileges to call those command by themselves. So they hire these intermediaries to give them a hand. Now that's how I see the analogy working, and these intermediaries, the lawyers, who apply their commands to the judiciary, the allocator of the machine, shouldn't take on requests that they consider unfair or wrong, same as a computer guru shouldn't help a user on a mainframe to do something that prejudices other users, no matter that those other users can get another wizard to help them defend themselves. So, and I say this as a law student, I think lawyers do bear some responsibility for their work.

[Ilya]

Your ananology is deeply flawed

CPUs are mindless, lawers are supposed to have a mind of their own..

And the when acting within a law excused anyone from basic human responsibility? Hey, should we call a rank-a-file gangster a "CPU" and give him a free pass because it's his boss who sets the "law"?

It gets especially bad b/c the LAW IS NOT A PROGRAM. Program has predictable results (in most cases anyway). Law as practiced in US definitely does NOT. If it did you would not need lawyers, would you? The judge would just follow the *program*). Need a proof? Well, just give a lawyer a totally meritless case and he WILL find a way to spin it (for a while at least) and cost the defendant for a few thousand dollars (or tens of thousand dollars).

It might have been tolerable if lawyers practiced their so called ethics (and those who do not would quickly stop being lawers). Unfortunately a large percentage do not practice their ethics and are never punished for wreaking havoc on innocent people lives.
Just open Yellow pages and look for "no nonsense" lawyers. What do you think "No nonsense" mean here? Right, they will take on any case as long as it smells money. Why are these lawers not disbarred immediately?

[Ilya]

"""I remember one lawyer arguing that morality and fairness are irrelevant; all that matters is passing some kind of judgment so that people can get on with their lives."""

Cute. If morality and fairness are irrelevant, then let's just toss a coin to decide every case the moment it's filed. Why do we need lawyers then?

And allowing people to "get on with their lives" is not a lawyer's goal. In fact way too often lawyer's primary goal is to inflict as much inconvenience and monetary cost on the other side as possible or, alternatively, to drain the client of as much money as possible.

I think your lawyer friend is a good example of how broken US system of justice is. (note to your lawyer friend: there must have been a reason why it's called JUSTICE)

[Byron]

A CPU executes a unambiguous series of commands in a linear fashion.

Human interaction is neither unambiguous nor linear.

Laws are society's way of setting out MINIMUM STANDARDS of CONDUCT.

By saying that they are not responsible for morality or fairness lawyers are saying that laws are the MAXIMUM STANDARDS of CONDUCT in society.

That is a dangerous position to take.

[Dave Hitz]

I love the way people are extending this analogy.

I agree completely that the CPU itself (i.e. court) can sometimes be broken. Good point!

If ?laws are programs?, then why not look for a better programming language to write them in? Another good point. Legalese 1.0 seems flawed given that a misplaced comma can cost millions (http://www.npr.org/templates/story/story.php?storyId=6383383). Wouldn?t it be more readable to use parenthesis or indentation for making such critical distinctions? (And while we?re at it, let?s convert all those Latin words into English in Legalese 2.0.)

There are other extensions as well. I was thinking of laws as programs, but contracts are also like programs, so contract lawyers are also programmers. Maybe contract lawyers are application programmers, and congress writes the operating system laws on which you execute your contracts. Does this make the Supreme Court a virus scanner that prevents illegitimate code from grabbing control of the operating system?

The trick with analogies is always knowing when to keep digging and when to stop!

[Dave Hitz]

> Laws are society's way of setting out MINIMUM
> STANDARDS of CONDUCT.

[Dave Hitz]

> Laws are society's way of setting out MINIMUM
> STANDARDS of CONDUCT.

I agree completely! The point you make is what I was trying to communicate when I said that companies are subject to the "judgement of the public" and that "what I did was legal" isn't always a good defense.

I believe that most people have a sort of "moral intuition", and companies or people who violate that end up in trouble even if they follow the letter of the law.

> By saying that they are not responsible for
> morality or fairness lawyers are saying that
> laws are the MAXIMUM STANDARDS of CONDUCT in society.
>
> That is a dangerous position to take.

Now you are at the heart of the distinction I was trying to make.

Out of the courtroom, it would be nice if people held themselves to a higher standard than simply following the law. But in the courtroom, the law is what matters. The judge (and jury and lawyers) don't get to make up the laws that they wish congress would pass; they are simply supposed to enforce the law as it is written.

That is all I meant when I said that morality isn't the lawyer's job. I agree with you in hoping that laws don't become the minimum standards of conduct, but in the courtroom, that minimum standard is all that we are allowed to enforce. (In choosing who to hang out with, what companies to buy from, and what companies to boycott, we get to set much higher standards of conduct!)

[Nathanael Nerode]

"Equity" vs. "Law":
In the British "common law" legal tradition, which we have inherited, there are two different things: "law" and "equity". "Law" operates the way you described. However, courts are also able to give judgments in "equity", which means they are empowered to ignore the strict letter of the law in favor of what is most fair.

Any lawyer worth his salt should know that. Whenever "equity" comes into play, morality and fairness become paramount, and trump all laws. Not kidding here; abuse of the law as if it was a set of game rules is the reason the concept of "equity" was invented. What *do* they teach them in law school these days?

And this is something to remember: maybe what you or your company did was within the letter of the law. But if it was *unequitable*, a judge has the right to rule against you. There are no "loopholes" in equity.

[Robin Harris]

Dave,

Good post - I love watching engineers dealing with people rather than things. The two are fundamentally different, so the engineering mindset only goes so far. The reactions to your post are a case in point.

Your lawyer friends were BS'ing you: our legal system is based upon a very deep and abiding morality, that, like Adam Smith's invisible hand of the marketplace, does not rely upon individual morality or fairness - always in short supply - to achieve a good result. Bad government, I would argue, is the single worst evil in the world. The US legal system, including the Constitution, seeks to replace a government of men with a government of laws, which, while not perfect, provides a better outcome than men-based governments have. That is a noble goal.

I've noticed that engineers, in general, have a problem with advocates of any stripe, be they lawyers, politicians or marketers. It is natural: engineers like to believe there is a knowable objective reality whose elements can be optimally arranged to achieve a set of goals. Advocates want to win and will usually use whatever is allowed, often offending all those who preferred another result.

I've written about these issues in a storage context in a few posts: Help Wanted: Storage Leadership Position Open, Adam Smith and the Liberace Effect and Truth: The Ultimate Marketing Tool. I think you and your readers will find them all entertaining and provocative.

Finally, thanks for opening up to comments. It takes the blog ethic of dialogue up a notch.

[Jonathan T]

Ok, so lawyers aren't inherently good or evil. They are, however, human beings and not mere mechanical cogs, and as such it is part of their duty - as humans, if not as lawyers - to think about their actions and refuse to that which they believe to be "bad programming". Failure to do so may not make them a bad lawyer, but it does make them an immoral ("evil") person, at least under the moral systems underpinning most modern societies. Merely becoming a lawyer doesn't exempt one from moral considerations.

The legal system itself has rejected the claim that the executors of a legal/moral system carry no individual responsibility for their actions based on their programming. Quoting http://encarta.msn.com/encyclopedia_761561717/War_Crimes_Trials.html,

[The Nürnberg International Military Tribunal] also rejected the contention of a number of the defendants that they were not legally responsible for their acts because they performed the acts under the orders of superior authority. According to the tribunal, ?the true test ? is not the existence of the order but whether moral choice (in executing it) was in fact possible.?

Perhaps people, including lawyers, shouldn't stress over little bugs in their code, but they do have to draw a line where a "bug" changes from a nitpick to a defect. I do agree with you that it isn't the job of the lawyer to debug the code, but it is their job to generate an error code and exit gracefully when their programming is broken. If they can't do that, then their firmware is buggy.

[Gary]

Many people who commented on that post before me outlined authors faulty logic. I'd like to add couple more points:
1. Success does not breed litigation. Money does. Let's say you are very successful in your marriage or scientific research. If you do not have big money, that some lawyer want to transfer from your account to his own, you won't be sued.
2. Our legal system does not work by the law. It works primarely by precedent. Any legal student who has to study thousands of cases knows that. That is why this country needs so many lawyers and that is why they have so narrowly focused. No one in his right mind can remember cases in more then one field. If one crook has blubbed his way around the law he openes a flood gate that makes the law impotent.
3. Comparison of lawyers and judges to CPU is not working because that CPU is not working primarely to solve your problems but for their own benefits. More then once I have been betrayed and deceived by the lawyer who was making deals behind my back and left me holding the bag.
4. Morality and fairness is not their job because they do not have any. Or, let's say, it is on the lavel of a grave robbers'. California state bar association says that it is holding their members to the high ethics standards. Here is the example - I once complained there, that lawyer, who was charging me $300/hour prepared legal papers that were full of legal errors. The bar response was that I had a chance to review these papers before they were filed and, if I did not find errors then it is my problem.
5. Laws are passed by the Congress but they are prepared by lawyers and very often for lawyers benefits. Example: If someone verbally abuse you in public place (call you names) you can sue this person for diffamation. However, lawyer in the court room in front of the jury can that very same thing, smear you with tons of dirt without presenting an ounce of evidence, and law does not allow you to sue that lawyer for diffamation.
I can give more examples why lawyers are evil but my post is getting too big