Commentary Magazine


The Lawyers, by Martin Mayer

Legal Survey

The Lawyers.
by Martin Mayer.
Harper & Row. 586 pp. $8.95.

With this sizable book representing a six-year effort, Martin Mayer takes his dearly earned place as America’s leading amateur lawyer. When he wrote his book about advertising people, Mr. Mayer did not have to become an advertising man himself. Nor did he, in my recollecton, exert himself to touch all bases (anyway, compared to advertising men, lawyers have more bases than Ty Cobb chasing Jackie Robinson for decades could touch). We may suppose, then, that law compels Mr. Mayer more deeply than advertising; and we may just note (though I detest this kind of irresistible psychoanalytic thing) that both his parents are lawyers—which suggests, of course, that to become a lawyer (without jeopardizing his amateur status) he did not have to go to law school—for the good and sufficient reason that he had been raised in one.

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Mr. Mayer has attempted a comprehensive survey not only of lawyer activity—how much money in negligence practice, how many lawyers in Washington, what a night school is like, etc.—but something like a survey of the law itself. It must be a hundred years or more since any single legal scholar has undertaken a survey, as distinct from a characterization, of American law with examples. We have some encyclopedias in the law, but they run to dozens of oversized volumes, and have little status among the better technicians. By its very nature, the law cannot be surveyed; it makes sense, if at all, only as it is given sense—most often through an argument in a particular case, or, in law-review/treatise work covering a larger problem or an entire field, through a consistent prejudice which lawyers like to call a “policy argument.” What then is Mr. Mayer’s argument? I am kindest to him if I say that I do not find any in the book that is consistent or coherent; but I start to be unkind if I say that the book is swarming with the kind of practice-argumentation that one can overhear at any time of day or night in any good law-school dormitory (this being far and away the primary educating factor in the initial training of a lawyer).

The Lawyers starts with a general introductory chapter with a barrage of fascinating facts about the profession. Did you know that . . .

  • An estimated $4 billion was spent on legal services in 1966?
  • Three-fifths of the lawyers in New York City are Jewish?
  • Lawyers live longer than most people?
  • Although their business is drafting contracts, 55 per cent of law partnerships are governed by unwritten understandings? (This is the best fact in the whole book, by far.)
  • A leading Boston lawyer took cash instead of stock—on a collection job in the early days—from Henry Ford, yet?
  • The median annual income of 300,000 lawyers was $13,000 in 1966?
  • The “right” price for an average lawyer’s time is $25 an hour?

Thoughout The Lawyers, Mr. Mayer gives us a lot of this sort of thing (including a whole chapter on law publishers, which is fresh and excellent). But the defect of this virtue is that Mr. Mayer’s approach to the law is merely inquisitive, and based merely on his own energetic eccentricity. Thus, in his chapter, “The Business of the Courts,” a cause of action is defined in one helpful sentence, and motions are dealt with by means of a complaining quotation from a former judge and the author’s timely reminder that the key to successful motion practice is the Christmas present to the clerk. In his chapter on torts, the nature of “loss of consortium” is firmly fixed in mind with the parenthetical remark that it is “a fancy word for sexual intercourse: courts have even worried deeply about how much a wife is entitled to if her husband’s accident deprived him of one testicle.” Tax lawyers are concentrated in New-York City, we are told, “because taxes and the money market are closely related.” (Nothing else?) The Robinson-Patman Act gets two paragraphs in which space is found to note the FTC’s “lawyerlike ignorance of the significance of actual marketing practices” but no space is found to mention the political reasons for the initial passage or subsequent immovability of this absurd statute, nor is there any mention of the presence of numerous economists on the Commission’s staff.

The most characteristic fault of this book is the presentation of a fact or a statement which presumes to inform us as to law and lawyers, but which in truth misleads through inadequacy. Here is one example of many: “Associates may talk to clients, but they are almost never authorized to sign letters of opinion.” Associates (i.e., non-partner attorneys) do indeed spend long hours talking to clients and writing letters, all of which has nothing to do with signing opinion letters (which they also write). An opinion letter is the basis of a malpractice action, like an accountant’s certificate; it is always signed in the firm name by a partner identified as such, to ensure the firm’s liability; no client in his right mind would accept an opinion letter (they are expensive) signed by a non-partner, because such a signature would leave open the factual issue of authorization in a subsequent malpractice suit. Now my point is that Mr. Mayer should not have included this fact without an explanation; in the absence of the latter, nobody is being informed of anything, and the statement as it stands is a senseless non sequitur.

And then there is Mr. Mayer’s famous quotesmanship. To be succinct, the talent he displays is in the gathering, not in the deploying. It fascinates me that, as a journalist, he uses quotes the way a mediocre win-the-argument lawyer cites cases—except that he usually argues both sides of each case. This frequently enables him, with a wordy show of fairness, to give a double Bronx cheer to single aspects of the profession. On many other occasions, the point of this Indian-giving method of composition seems merely to be the obvious convenience it offers the harassed writer actually to use all the index cards he has collected. Mr. Mayer’s gathering-instinct is catholic, to say the least; and while I personally have no prejudice against gossip, I did wonder occasionally about its value to the lay reader; anyway, many of the juxtapositions are jarring even when the word-of-mouth or library quotes are individually intriguing.

I don’t mean to suggest that Mr. Mayer doesn’t have his own opinions on a great range of matters connected with law and lawyers—even a good number that are not subsequently retracted. Here, I am the eccentric: my problem is that I just don’t agree with very many of them. For example, he follows Alexander Bickel on reapportionment, and seems to favor Herbert Wechsler in criminal law: I did not, do not, and will not. But there are also a good many straightforward views expressed which I would both hope and expect that very few lawyers might consider acceptable. Most spectacularly, Mr. Mayer finds the presumption of innocence functioning primarily to inhibit intelligent discussion of crime; and he assures us that 95 per cent of adult defendants in serious cases “have unquestionably done something for which they could properly be punished by law” (his emphasis). Nor are matters any better in civil litigation—“where both sides are usually more or less right” (my emphasis, this time). Not only lawyers but numerous philosophers are apt to object to his definition of justice—“The only possible operational definition of the word says that justice is the visceral reaction of informed people.” In fact, he is generally bilious toward the entire adversary system. Deal-making, maneuvering, etc., before trial (and plea-bargaining in criminal law) he everywhere takes as evidence that trials aren’t important anyway. This reveals such a profound misunderstanding of the essentially symbolic nature of the legal system, the role of lawyers in it, and its role in society, that one is almost embarrassed at taking the book seriously at all.

If we think of a book as something more than a collection of interesting facts and quoted opinions, then The Lawyers must be judged a monumental failure. In America, we are all trained from an early age to make do without ideas, with facts alone. This has been the essence of our journalism—and much else besides—and nowhere can the method have been more monstrously misapplied (by one of its most expert devotees) than in The Lawyers. One simply cannot write about the law without a unifying idea—or at least the serious search for such an idea. And unifying ideas about the law do not come as a gift in this country, because we have practically no jurisprudence: we have the reminiscences of technicians and Big Bosses, a handful of literate judges, scores of brilliant professors in special areas (few writers among them), Roscoe Pound, and David Riesman. Hardly a tradition. And Martin Mayer has not managed on his own to make up for the lack of it.

Saddest fact of all, he clearly has a deep and complicated feeling for the subject, which I honor. But I must aggressively suggest—recalling that we are noting the failure of a method, not a man—that this most earnest, hard-worked expression of the feeling resulted in an impossible and dangerously misleading book.

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