The Legal Doctrine of Don't Be An *ss

You probably don’t need me to tell you that lawyers make everything colder and nastier than it needs to be, but as a lawyer, it always slays me when members of my own tribe pull that legalese on me.

I think it must be that law school can only amplify what you already are. If you were already wired to be a self-appointed guardian of the machine, then certainly there is much about that orientation that law school will exalt. Everywhere you will see liability created when somebody makes an exception or -- the worst sin -- “was just trying to be nice.” If you were already a gadfly, then likewise. Everywhere you will see a small band of committed people striking blows for justice.

But I would have thought that law school would engender a certain feisty quality in all of us, at least as concerns our personal affairs. I mean, like a willingness to insist on that warranty or fight that traffic ticket or take that deduction -- that sort of thing.

My husband tells the story from when we were dating and I was in law school, that we were driving into a parking lot and idly reading that sign -- you know -- that says about how they cannot be held liable for objects left in the car. And I said, “Says who? You don’t stop being liable because you say.”

Feminists used to talk about having these “clicks,” these tiny moments when they realized something profound about gender disequilibrium all around us. That was a “click” moment for us, but as Americans. Like, that you get to ask, “Says who?” Like maybe we -- Americans -- we’ve been sleepwalking; we’ve been sold a bill of goods. Like maybe we should all be walking around zapping everything with our little “Says who?” salad shooter as a matter of habit.

I used to work for this US Senator helping constituents who had problems with federal agencies. One such constituent was an investor in foreclosed housing, and was having a difficult time with HUD. I don’t remember the details. There were charlatans involved. We did a little something for her, but I remember that her case was so compelling for me that I wrote a little memo to the Senator about it.

Years and jobs later, that woman contacted me. She was being sued for something related and needed something -- I forget what -- from that work that we had helped her with. Well, I put her in touch with my old colleagues but I also happened to have that old memo, so I sent it to her. And I contacted the Senate counsel to report it to them. They said they would look into whether they would allow me to give her the memo. And I said, good, because I had already done so and would testify in the proceeding if I could be any help. And this flabbergasted the counsel -- that I wasn’t actually waiting for the go-ahead. I mean, what are they gonna do? Take away my birthday?

Well, as it turns out, it never came to that, and the problem resolved on its own. But I have never forgotten that encounter. Based on what, precisely, would the counsel pull down the powers of the US Senate to stop me from testifying in a case, if I wanted? Never mind that it’s my civic duty as an eyewitness. What state secrets was I privy to? What government interest was I thwarting?

In law school, we used to say that there was a legal doctrine that superseded all others, and it was, Don’t be an *ss! (A corollary might be “Throw me a bone, here!”) Really, just on principle, Americans should stop putting up with any lawyers who have forgotten that doctrine.