On Suffering and the Law: The First in an Infinite-Part Series
This is a subject (and a post) I’ve been thinking about for a long time. As I sit down to write, I still am unsure how to approach it.
There is a question that has kept me up more nights than I can count: How do you alleviate suffering as a plaintiffs’ lawyer?
I realize this is not important to everyone, and certainly not to every practicing attorney out there. But I have long been concerned with the problem of suffering. And I, like many people who become lawyers, was attracted to the idea of the law as a tool for helping people. I still am.
I am not a religious person. But with agnosticism comes, or should come in my opinion, a sense of duty to repair and improve what is known. We know, at least insofar as we know anything at all, that we exist right now. We don’t know for sure if we have anything beyond our current existence. We should therefore seek to improve our own lives, and the lives of other suffering creatures. Because…well, it’s the best we can do.
And we know, or at least we can safely estimate, that other creatures will be around after we’re gone. We should do what we can to improve upon the world, so that these other creatures do not suffer as badly as we have (even if we have not suffered badly at all).
The alleviation of suffering is a human duty, I think. And, in most cases, I would say that duty should precede one’s duties as an advocate. Hopefully, those two roles intersect more often than not.
But the question of a plaintiffs’ lawyer’s role in the universe is, I think, profoundly complicated. A criminal (or even a civil) defense lawyer must act as a shield and not a sword. Does that automatically give her the moral high ground? I don’t think so. A villain cowering behind a shield is still a villain. And of course, not every defense lawyer is Atticus Finch. But to strike at the villain lurking behind his shield necessarily increases his suffering. We pretty much know when we file a lawsuit that we are going to make someone else suffer, even if it’s just making an individual uncomfortable for a few hours in a deposition. And to what end? We don’t know for sure. We can’t know. What we hope is that by increasing the suffering of the defendant, we will lessen the suffering not only of the plaintiff, but of other people in her position as well. We cannot know for certain that either outcome will result.
As important as it is to stick it to the Man, it is at least as important to be kind and compassionate. Probably more. Definitely. After all, if the Man were kind and compassionate in the first place, you wouldn’t have to stick it to Him at all.
On the other hand, look at the arc of history. Hell, just the last 100 years. Is there any question the plaintiffs’ bar has made it a better, safer world in which to live? Because of better advocates than I, hospitals are safer, the workplace is safer, transportation is safer, food is safer, and even coal mines are safer than they were.
So the question, to which I have not been able to find a satisfactory answer, or even an answer that is really on point, is basically one of utilitarian calculus. Is it morally permissible to cause a little bit of suffering, when you know for sure that suffering will result, in hopes that your actions will alleviate suffering on a larger scale, in some ill-defined way? The future payoff to society (and possibly to the plaintiff), if it ever comes to pass, seems to greatly outweigh the suffering a defendant incurs by being subjected to the stress of a lawsuit. But that stress can sometimes be more substantial than we trial lawyers realize, and at any rate, it is almost certain to occur.
Conscientious prosecutors surely wrestle with this idea too. But while the suffering a prosecutor must cause is often greater, the suffering he helps to alleviate is more concrete. The bad guy goes to jail and doesn’t hurt anyone anymore. It is much easier to grasp, and to justify.
I think I am, for the most part, on the right side of this equation. But I am not always sure. I don’t know anything about philosophy, but I know some of you out there must. What do you think?
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