September 2002

Superlawyers, Truth, Justice and the American Way

As a child I was an ardent comic-book fan, so I take the appellation "super" quite seriously. In the world populated by The Flash, Spiderman, Wonder Woman and, of course, Superman, there are heroes and there are superheroes — the latter distinguished by the possession of extraordinary powers used in battle with equally extraordinary villains. The means by which you came to possess the powers that made you "super" were varied; it could be the fact of your birth on another planet (Krypton), or exposure to radiation, or in Batman's case (the exceptional self-made superhero), immense ingenuity, mechanical acumen and wealth. One thing is certain — it was a status never conferred by nomination.

Consequently, when I received word from Washington Law & Politics that I had been nominated to join the ranks of "superlawyers," there was a certain disconnect. I was pleased, of course — even thrilled in a childish sort of way at the thought of becoming "super" — but at the same time I was aware that, as with superheroes, you either are a superlawyer or you are not. It's simply not something a "Blue Ribbon Panel" of lawyers can decide. (Did I miss that day in law school when they gave out the blue ribbons?)

My point is not about word inflation; what would be the point of talking to lawyers about that? Rather, my concern is authenticity, or perhaps you could call it ego inflation. One lawyer I know calls Washington Law & Politics "Washington Vanity & Extortion." I confess to not reading the magazine since my free introductory subscription ran out. Life is already too short to do all the reading that sits staring at me from piles in every room of my home and office. (Did you know you can do an actuarial calculation of how many novels you can read before you die?) Law & Politics seemed mainly a vehicle for advertising driven by an impulse for self-promotion among lawyers. While I have no quarrel with advertising, I do object to advertising that portrays itself as something else.

The superlawyer contest is advertising, plain and simple. The selection process (see http://www.superlawyers.com/) reminds me of the survey on "Horses Used for Work" recently circulated by a neighborhood sixth-grader. That is, the methodology is bogus if intended to identify the lawyers who excel in their profession.

For example, the implied response rate (5,000 votes cast of 6,500 surveys mailed) exceeds the wildest dreams of the most optimistic sociologist. For all we know, those 5,000 votes have been cast by 10 (very busy) people. The same question arises from the description of last year's survey, with its "poll of 8,000 lawyers." Does that mean that last year Law & Politics mailed 8,000 surveys to 8,000 lawyers, or that 8,000 lawyers voted last year, or that eight lawyers voted a thousand times? Whoever voted last year, their votes were added to the votes this year (double-counting certain voters?) to produce the superlawyer list, a tabulation method perhaps only Floridians would understand. The only apparent effort to ensure quality of measurement (the discounting — by an unstated amount — of same-firm votes) seems as likely to undermine quality of measurement (since lawyers who practice with one another might be in the best position to assess each other's work).

I guess the fact that the final arbiters are described as a "Blue Ribbon Panel" (the capital letters being a nice touch) is the most obvious clue to a lack of rigor in the survey. Certainly, nothing in the selection-process description should inspire confidence in either the validity or reliability of the measurement. It is clearly not a random survey. (I asked for a sample of last year's survey, to see what kinds of questions were asked, and was assured I would be included in the upcoming poll.) Indeed, the selection-process description seems merely an effort to give the appearance of reliability, without ever going to the actual trouble of being reliable. It didn't assuage my skepticism when a superlawyer friend told me you had to pay $600 if you wanted a profile of yourself to appear with the designation; otherwise, only your name is listed. Business and competition being what they are, that's a hard offer to refuse. Nor did it help when I learned from Law & Politics that they don't preserve samples of their "ballots," so I couldn't learn what kinds of questions were asked or verification required. I was too scared to ask if Arthur Andersen did their auditing.

Again, I pick no bone with advertising. Lawyers need to make a living like everyone else. But I object to pretending that the superlawyer list accurately reflects merit. Which is not to say that some of the superlawyers are not indeed terrific lawyers. But without a banner disclaimer in the magazine and on the Web site (e.g., "This list is both underinclusive and over-inclusive and does not purport to be a listing of the best lawyers in Washington."), the magazine is perpetrating a hoax.

Who are the best lawyers? Unfortunately, I think we often answer that question with as much methodological integrity as Law & Politics. That is, we answer with the well-known lawyers, an attribute with a variable relationship to skill and professionalism. I'm sure we've all noticed the tendency to equate name familiarity with quality. Indeed, some theorize that elections can be won through name repetition alone. Reputations frequently are built on the same nonsubstantive premise (e.g., "I've heard of him/her."). Law & Politics did not create this condition; it merely capitalizes on it. Still, it is ironic in a profession that attends in most other contexts to reliability and authenticity of evidence. I suggest that to ignore those requirements in more and less formal perpetuations of reputation is corrosive in its effect on our profession.

We should be more careful, that's all. We should insist, in ourselves and in others, on more precision in our assessments of attorney merit. The fact that we see someone's name repeatedly may mean nothing more than that person really gets around (not always a good thing). When someone tells us that so-and-so is a good lawyer, we should accord that information exactly as much weight as any hearsay. Perhaps most importantly, when pronouncing on another lawyer's skills, we should make certain that we are applying the right criteria. In particular, we should resist the tendency to apply the wrong criteria, such as who agrees with me, who will scratch my back, who will enhance my access to power or advance my own ambitions, who ruled in my favor. Law & Politics encourages that tendency when what is needed is assistance in applying the appropriate criteria.

Most of us agree we have problems in this profession. We are perceived by the public as liars (remember Jim Carrey?), sometimes because our role is misunderstood, but often because we do lie. We overbill. We take on the antipathies of our clients, rather than guide them to a solution. We fan the flames. We encourage litigation because we need the work. We treat each other as if we were enemies, rather than representatives in a civil dispute, engaging in a "take no prisoners" litigation style. We think the ends justify the means, for example, ignoring the rule that requires us to tell the judge if there is contrary authority on point. We press for victory by increasing the pain of litigation as a way to avoid a resolution on the merits. We interpret advocacy to mean anything goes; the only limit on what we will argue and how is whether we are being paid enough.

Many of these tactics are symptomatic of our own lack of faith in the justice system, our own cynicism. We submit our clients' lives to judges who vary in degree of skill and knowledge, who may be overworked and lacking critical staff support. Judges may preside over substantive areas of the law totally unfamiliar to them, or may hardly have practiced law at all. We may view some judges as having achieved their position by electoral lottery or by political influence unrelated to judicial qualifications (the reputation thing gone awry again). Indeed, some judges may seem to care more about their political careers than about the law. Like many lawyers, their responses to a case may often depend more on their responses to the litigants and/or their lawyers than on the law. Sometimes, as if to prove axioms true, judges lose a sense of the limits on their own authority; they lose the humility that should season the exercise of their power. Litigants, encountering such abuses of power (for which there are no effective remedies) naturally take a view of the judicial system as a crooked game. Lawyers sometimes share or even encourage this view. Points can be won, after all, by throwing cluster bombs of irrelevant argument at even a hard-working judge. The system's weaknesses can be exploited if all that matters is winning.

But that's not all that matters. Most of us probably chose law over, say, dentistry, because we wanted to do a particular kind of good in the world. In ways that may seem incredibly naive to us now, we believed the word "justice" belonged in "justice system," and not just as another example of false advertising. Maybe now, as lawyers, not law students, we view our profession more as Law & Politics does — a world of artifice and advertising, driven by our ambitions, not by our allegiance to the law as a credible mechanism for sorting out disputes.

We can and should do better. When I hear clients' excruciating frustration with their treatment in the system, I remind them it is not perfect because all the moving parts are human. Lawyers and judges today, as well as litigants, are prey to the same foibles as those pilloried by Shakespeare and Dickens. For many lawyers, Bush v. Gore was the last straw, confirming the law as nothing but an elaborate power play.

But humans are more than the sum of our weaknesses. The fact that the system is flawed or that our colleagues behave badly does not excuse us from our duty, a duty to make the system work as well as possible. Justice, after all, is an aspiration, not a reality; it is a goal we will never reach and a goal we must daily try to reach. Superlawyers are lawyers who make that critical effort. They are the ones opposing counsel believe they can trust. The ones who leave their clients feeling good about lawyers, win or lose. The ones whom judges view as candid, well-prepared, and helpful in finding a correct outcome. Being a superlawyer means putting your ego and ambition in its place, a place that is subordinate to the more important governing principle: integrity. After all, there's only one person in this whole wide world who can tell me whether I'm living in accord with what I know is right and wrong, and she doesn't have a blue ribbon.