As a criminal defense lawyer, foolish enough to blawg under my real name, chances are that there's not much I have to say that will interest a bunch of scholarly folk like lawprofs. In fact, I do my best to use small words so I have half a chance of spelling them right the first time around. But my occasional interest in things counterintuitive makes this opportunity to good to pass up.
Law schools, and all those bright young people who work there, tend to value intelligence. Smart people take it as an article of faith that smart is good, smarter is better. Well, I'm here to question the obvious, mostly because it's what I do best.
The problem isn't whether intelligence has its place. Clearly it does, if you've got someone breathing down your neck about writing law reviews about critical issues confronting the law, like whether the Ministry of Magic adequately provides substantive due process, or whether Henry Fonda was unfair to Lee J. Cobb in 12 Angry Men. A working guy like me would never dream of matters so worthy of 10,000 words.
But when we're on trial, we talk to jurors. Some are pretty bright, but most, well, are not so bright. It's a trial lawyer's job to make our position clear to them, or at the very least make the other side's position just a little less clear than they would like. You don't always have to win. It's enough if you can stop the other guy from winning.
The problem is that smart people think differently than unsmart people. The think in concepts, with no need for anything concrete to connect them to. They use language the precisely expresses their thoughts, without the obligatory "like" or "you know" inserted between everything fifth word. Smart people tend to come off pedantic, a word that no working lawyer would ever utter to a jury. They won't get it and they surely won't like you for using it.
One of the best trial lawyers I ever knew was my former partner, Howie. Howie never read a law review article in his life. He read a decision once, but only because his name was in it. Mostly, Howie read the labels of vodka bottles, after he realized that he could see them better without all that liquid inside. Hey, everybody needs a vice.
Almost everybody called Howie a common guy. It wasn't always a compliment. He was no genius, and had some severe problems discussing much of anything that he couldn't see with his own eyes or hold in his hand. If you pointed this out to him, he would get angry and there was a pretty good chance he would throw a punch your way. Nobody looks to smart with a bloody nose.
Before a jury, however, Howie was Einstein. Not because he spoke eloquently, or was able to draw mental pictures of injustice. Howie had the power to speak dumb. Frankly, it didn't take a great deal of effort on his part. But he understood what the jurors heard at trial because he heard the same thing. I would listen to his summations and marvel at the things that came out of his mouth. It was as if he sat through a totally different trial than I did.
After, Howie would ask me what I thought of his closing. I would tell him, "You're a moron. What were you talking about?" He would then yell at me to shut up and threaten to punch me. It was just the way he showed his appreciation of my constructive criticism.
Howie won. Howie won a lot. He would get jury verdicts that no one thought possible. That's why he was my partner. So while you're doing all that heavy lifting to come up with viable ways to value the neglected virtues of lawyering, give some thought to how you would value Howie. None too bright, but the one who wins the case. And let me tell you, it beats the heck out of being the smartest guy in the room who loses.