It’s alive

by Walter Olson on June 5, 2013

Report: John Edwards plans to launch new plaintiff’s firm in Raleigh. [CNN]

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John Edwards to Open New Plaintiff’s Firm in Raleigh? – New York Personal Injury Law Blog
06.05.13 at 2:43 pm

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1 Tommcgtx 06.05.13 at 1:55 pm

Maybe Weiner can get a job there if he loses the Mayor’s race!

2 Slugger 06.05.13 at 4:05 pm

I understand that he has a good won/lost record. Just like you might employ a player with a spotty personal life who performs well on the field.

3 JohnC 06.05.13 at 4:29 pm

@Slugger

His success had more to do with his “what-a-likeable-guy” southern charm and charisma than actual skills. Something of a one-pitch pitcher. That persona mightn’t fly as well now. (Of course, you could say the former about Clinton, yet….)

4 Jack Olson 06.05.13 at 5:23 pm

Will he take paternity suits?

5 Invid 06.05.13 at 10:25 pm

Didn’t he channel a dead baby’s spirit during closing to a jury?

6 Chip 06.06.13 at 9:45 am

How dare the man attempt to earn a living! At what he’s good at! The nerve. I can see why all you libertarian free market capitalists are up in arms.

7 Walter Olson 06.06.13 at 9:56 am

And now, with Chip’s assistance, you can all see why the “character and fitness” prerequisite for legal practice — even as expressed in mere social disapproval as distinct from a regulatory barrier — is dead as a doornail.

8 Turk 06.06.13 at 12:08 pm

And now, with Chip’s assistance, you can all see why the “character and fitness” prerequisite for legal practice — even as expressed in mere social disapproval as distinct from a regulatory barrier — is dead as a doornail.

It’s not dead Walter; the jury is more powerful than the character and fitness committee. An attorney will have a difficult time persuading on the facts when the it finds him/her untrustworthy.

He could still do other parts of the job, of course, just not the jury trial part.

9 Ron Miller 06.06.13 at 12:13 pm

Not exactly great news. But can you tell me which profession does a good job of making character a part of the job requirements?

10 Walter Olson 06.06.13 at 12:30 pm

>the jury is more powerful than the character and fitness committee. An attorney will have a difficult time persuading on the facts when the it finds him/her untrustworthy.

But it’s not permissible in a trial, is it, for opposing counsel to point out that one of the advocates has a record of dishonest or disgraceful actions unrelated to the case at hand? Possibly in Edwards’ case his misdeeds are notorious enough that every juror will know of them already. But that hardly suffices in the more usual case where a lawyer’s past sins, though grave, have not been splashed across the national news for months. I hope we are not arguing that jurors can tell honest from dishonest lawyers by demeanor; were appearances not misleading on that score, the Madoffs and Ponzis wouldn’t have prospered in the first place.

11 Turk 06.06.13 at 12:38 pm

Possibly in Edwards’ case his misdeeds are notorious enough that every juror will know of them already. But that hardly suffices in the more usual case where a lawyer’s past sins, though grave, have not been splashed across the national news for months.

I was writing specifically about Edwards where his (mis)deeds are well known, particularly in his home state.

There isn’t any profession/job that is perfect in guarding against scoundrels, but I think we do a better job than cops, doctors, the priesthood, and many others. Perfect? Not by a long shot. Which is one of the reasons my blog has the tenor that it does — I think we can do better.

12 Ron Miller 06.06.13 at 1:40 pm

I don’t think a jury thinking you are a great guy is necessarily the only key to being a great trial lawyer. And my guess there are many in North Carolina who see him as a hero in spite of it all. If I were trying a CP case in North Carolina and John Edwards was sitting next to me, I’d feel pretty decent about my chances. He is in the top .00000001% when it comes to personal charisma. You can’t overlook this. Geez, I’m pretty sure that trial would include an indirect reference to his personal mistakes and how you have to pay the price for your errors just like he did.

Juries are great. But they can be suckers just like anyone else (including, notably, judges).

But going back to my original point, the reason why lawyers do a poor job – in absolute terms – of keeping out the riff raff is that it is impossible to do. What would be the basis for keeping Edwards out? He has been convicted of nothing other than being a horrible human being. What would be the mechanism to prevent him from practicing law? And you can imagine how that mechanism would be utter misused?

Walter, you don’t have any concerns about a government or quasi govt body making fine tuned character calls?

It is an imperfect system for an imperfect world.

13 Bob Lipton 06.06.13 at 5:28 pm

Ron,

For the sake of argument, I will concede the possibility that lawyers do as good a job as other professions in terms of keeping s**mb*gs out of their ranks. I won’t concede that in reality, but for the sake of my point, we will lay that aside.

Is it your assertion that this is good enough? Because that’s the clear implication to be derived from your statement that “But can you tell me which profession does a good job of making character a part of the job requirements?”

Given that the legal profession is concerned in no small part with identifying “horrible human beings” and taking action to prevent their horrors being visited on others, why should we imagine that a less than stellar job of self-selection should be evident in the legal profession? Shouldn’t doctors average longer, healthier lives than non-doctors?

Bob

14 Chip 06.06.13 at 6:17 pm

Ron Miller said: “Walter, you don’t have any concerns about a government or quasi govt body making fine tuned character calls?”

Exactly the right question. Walter’s pithy response to my post failed to address the essential point: How is it consistent with this site’s professed libertarian bent to imply that Edwards has no right to work at his chosen profession? Or was Walter merely expressing “social disapproval” of Edwards’s career choice and I just misunderstood?

15 Walter Olson 06.06.13 at 8:58 pm

Congratulations to Chip on his Invisible Ink Reading Method by which he manages to discern that my two-word joke “implied” a resort to bar eligibility or discipline mechanisms, as distinct from public scorn and deserved shaming of a rogue. Had I made it a four-word joke, he would probably have read it as implying particular views on the Syrian crisis or the AL East pennant race.

16 Chip 06.07.13 at 10:23 am

Ok, you got me. You’re a principled libertarian who was merely heaping scorn and public ridicule on a man who, frankly, richly deserves it. (Please forgive the double adverb. It’s early and I haven’t had my second cup of coffee yet.)

And who is going to win the AL East? It’s Alive Boston RedSox?

17 Ron Miller 06.07.13 at 11:47 am

Bob, I don’t think lawyers are better – or worse – than any other profession. I really don’t understand how some people think their profession is more or less this or that. Basically, people are people.

You can spin your logic 1,000 different ways. Should Edwards be allowed to be a school teacher? I think we can all agree good character in a teacher is equally important, if not more, than a lawyer. A coach? Can you work at a nuclear power plant? I think lawyers are important to us but so are a lot of professions.

It is important to remember that Edwards has committed no crimes in the eyes of the law. He would be kept out solely because of the value judgments we are making on his character, cheating on your dying wife, not acknowledging your own child, etc. Bob, if you want a better system, one that would fairly catch Edwards and his ilk, please tell us all what it would be. One rule: it cannot involve a “King Bob” in any way. Because if I were king – let us dream together – I would exclude Edwards based on what I know. I trust myself to make character calls that are best for me. But I don’t trust any of the rest of you to make those fine tuned calls.

Walter, I read what you wrote to mean that you don’t think the Orioles can win the AL East. I think you are dead wrong.

18 Walter Olson 06.07.13 at 12:19 pm

In all seriousness, the question of what to do about rogues who seek to practice law is a complicated one with many moving parts, and Ron is very much on point when he observes that Edwards has not been shown to have committed any crimes in the eyes of the law, nor (AFAIK) has anybody sought to disbar him.

One approach is to say let ‘er rip, anyone who stays out of prison should be free to practice law, and the only remedies should be available after the fact once lawyer-rogues do demonstrable damage. I would observe that our current system makes sanctions hard to obtain and legal malpractice damages hard to win, which makes it especially unlikely that after-the-fact remedies alone will be an adequate answer alone.

Or we could add in the prospect of bar discipline, character-and-fitness screening of new bar applicants, or both. Bar discipline varies from state to state but is often pathetically weak. Character-and-fitness screening has fallen into near-disuse, in part because it used to be applied unfairly, although I believe it is alive and well in many other countries.

Finally, and very important, there are restraints from the bench and from peers. There is a tension, however, in both wanting judges to behave impartially and objectively, and in wanting them to use “lifted-eyebrow sanctions” on lawyers they know have misbehaved elsewhere. I am very interested in systems that arrange for there to be a lot of repeat interactions between attorney-judge and attorney-attorney pairings, which make it more likely that a lawyer who defects from ethical conduct in one instance will find it harder to obtain cooperation in others. I think this is one secret for the durability of the split bar system in Britain and elsewhere which creates a repeat-player barrister class much smaller than the class of lawyers (and a QC class that is much smaller still).

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