JILT 1997 (1) - Bagehot
Walter Bagehot (1826-1877)
Date of Publication: 28 February 1997
Citation: Bagehot W, 'Bad Lawyers or Good' (1876) , reprinted in 'The Collected Works of Walter Bagehot' Volume 7, (1974) (The Economist) 1997 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/wip/97_1kelm/bagehot.htm>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_1/kelman1/bagehot/>
Walter Bagehot (1826-1877) was Victorian England's greatest commentator. In his short but active life wrote many important works included the definitive text on the English Constitution. But he also considered all the institutions in society including the law. In 1876 he published a seminal essay called 'Bad Lawyers or Good' which considered the need for the reform of legal education and reform on the legal profession in England and Wales. Here is an extract:
'In the first place to a litigant the division of the profession into two halves is a calamity. A considerate person naturally wishes to understand why his case is right, if it is right; and why it is wrong, if it is wrong. Most men are more interested in their lawsuits than in anything else, and would be glad, for their own guidance, to understand them if they could. But when a client, so wishing to see how and where he stands, crossexamines his attorney, he is referred to counsel at the first difficulty. The attorney says: 'Sir, this is a more complex matter than I should like to advise you upon without assistance. It requires greater learning and more ability than mine; I could not pretend to give such an opinion as you ought to have on so important a transaction.' And at first the client is rather pleased He does not, perhaps, much like the cost of paying for the aid of counsel, but he is much pleased at being mixed up in matters so abstruse and important that their aid is necessary. At any rate, he now thinks that he shall fully understand his case; that he shall really know why he is fighting his suit, and be able to judge for himself whether he ought to compromise or persist in it. On this ground he readily enough consents to 'take the opinion,' and looks forward eagerly to receiving it. But when it comes he is almost sure to be disappointed. He finds, no doubt, a plain piece of advice that he ought to do so and so, and perhaps a categorical statement that so and so is the law; but he finds no reasons; he is obliged to believe what the oracle says; he is no nearer to a comprehension of his case than before. Nor can his solicitor help him. He says: 'I am sure, sir, I cannot take it upon me to say why counsel gave that opinion; but as we have asked for it, and paid for it, I suppose I must act on it.' Now, if the opinion recommend s the spending of much money, the client may not quite like this. If he could, he would like to get hold of 'counsel', and crossexamine him; he would like to treat him plainly and familiarly, as he does his attorney. He pays one and he pays the other, and he thinks he ought to get as much as he can out of both. But, in fact, he cannot. Counsel is secluded in a remote and inaccessible shrine, and you cannot effectually get at him. Even if the client gets a 'conference', he has to pay for it; and counsel treats him as if he was a curious intellectual 'specimen', perhaps from the provinces. Any question he may ask is answered with a kind of condescension, but counsel thinks plainly, 'What nonsense it is this fellow trying to understand his own case! I am paid to speak to him, and I will speak to him, but I will not speak to him very much.' And the client who has penetrated into the sacred ' chambers', probably finds that he has been put off with some vague and cautious observations, which do not seem to him very consistent with each other, and all which he cannot but think happen to evade the worst difficulty, even if they were not meant to do so. As he comes away he calculates: 'I paid so much a word for that interview, and what have I gained by it?' But it is only in the rarest cases that the client is so enterprising or so intrusive as this. In nine hundred and ninetynine cases out of a thousand the client never sees counsel at all. He only gets a copy of the oracular opinion from the attorney, and peruses it several times, wondering at its brevity, but still a little admiring its decision. Gradually he comes to feel a confidence in it, and is content to act on it. But when he advances some way further in the business, and is beginning to reflect on the expense, it occurs to him as strange that if the matter is as plain as the counsel tells him it is, the other side should be proceeding with so much confidence, and not attempting to strike their flag. Accordingly, he goes to his attorney, and asks, 'How is it that the other side are not frightened? You showed them Mr. A. B.'s opinion his very distinct opinion. I certainly imagined they would be rather inclined to yield after that.' On which, perhaps with a little smile, the attorney tells him: 'Why, the fact is, that the other side have consulted counsel also. They have been to C. D., a very eminent man in Lincoln's Inn, a gentleman I have often consulted myself, and he advises them that they are quite right. They have sent me his opinion. Here it is; perhaps you would like to take it home with you.' And so the client finds that there is 'oracle against oracle'; that the god of 'Old Square' speaks quite differently from the god of 'New Square'; and goes home dissatisfied and bewildered. The courts of law are blocked with suits which counsel advised to be defended, and in which neither plaintiff nor defendant likes to yield now, because both have spent so very much money.
I do not mean that all the uncertainty would be remedied by a better constitution of the legal profession. No doubt some uncertain cases there always must be; new varieties of complication arise daily, and require novel decisions. Unquestionably, too, other parts of our bad legal education make the law more uncertain than otherwise it would be. But it is plain that the artificial splitting of the law trade into two halves much aggravates the practical difficulty of getting at the law. 'Opinions' are the opprobrium of the legal profession. Everybody knows that an 'opinion' is to be had on almost every side of every question. 'Show me your case,' it is often said, 'and I write you your opinion.' Now, this could hardly be if the solicitor, the man whom the client pays, had the responsibility of advising him. His interest would be to come as near to the truth as he could, because he would be responsible for the advice he gave. But now he gets a shelter under the distant 'barrister'; he does not feel ashamed when the case is decided against him, because Mr. X. Y., a name in the papers, and a man you cannot get hold of, said you would win. And the barrister has no responsibility to the client either. The client cannot come and say, 'You advised me to sue; you told me I was going to win; yet you see I have lost.' The man you can scold did not advise you, and the man who did advise you, you cannot scold.
There are other and very delicate points in this subject. I believe most English barristers, and most English solicitors, to be very honourable men; but we all know that there are some black sheep in both halves of the trade. When, years since, I was reading law, I had laid for me a peculiar rule for pleasing the less honest sort of attorneys: 'Always,' said a very experienced man, 'always recommend proceedings, and then you will be sure to succeed.' His notion was that a barrister who promoted 'costs' would thrive with attorneys who live by costs. I quite believe that it would be a libel to ascribe such motives to most solicitors or most counsel; still one cannot help seeing how well the present system helps those who act on such motives. The ultimate adviser, the barrister, has no relation to the ultimate payer, the client; he has no motive to care to please him. He wants to please the attorney, for it is by the attorney's favour that he lives. What pleases some attorneys is present income. The barrister, therefore, who upon fair reasons, and within decent limits, always promotes costs and contention, will always please at least those attorneys. In case of gross failure, the natural penalty is the client's wrath; but we protect the attorney against this by enabling him to blame 'counsel', and we protect 'counsel' by immuring him in distant dignity.
It may be said that it would be quite useless for clients commonly to see counsel, for the points which counsel have to decide on are so technical that the client cannot understand them. But ought they to be so technical? Ought not the main gist of all cases to be intelligible to men of business interested in them, and anxious to attend to them? In matter of fact, I believe that almost all the law of moneyed property is now intelligible to carefu l men of that sort; and if the law of landed property is not intelligible, it is only because that law is bad. Mysteries in practical affairs are very dangerous; the more so because, when they once exist, many quiet, unimaginative people cannot help saying and believing that they are inevitable and necessary. But any one who rouses his mind to ask in a specific case, 'How does this law come to be so unintelligible?' will find that the reasons for it belong to some bygone time, and that now it wants to be altered and fitted to modern life. Nothing will ever simplify law so much as the making lawyers explain it to nonlawyers. It will be a great gain when all clients ask about their case anxiously, and when 'counsel' have to explain it clearly