Why Law Is Not Medicine
From time to time, a young person turns up at my office door looking for career advice. They are considering a career in the law. What, they ask, should they do? My answer is typically succinct: consider medical school. The law, I tell them is dark place. I’ve imagined that medicine offers light.
Law school does next to nothing to prepare lawyers for their role as counselors. There is no requirement that lawyers acquire any formal training in psychology, social work or counseling of those in need. Yet the situations driving folks to a lawyer’s office are often life changing, representing crises, or, turning points, in their lives.
Surely medicine does a better job of preparing physicians for understanding and helping folks in crisis.
I’ll never forget one memorable day on the fifth floor of the New Haven courthouse. My client, a young man, had just been sentenced to serve 18 years in prison for the possession with the intent to sell a small amount of narcotics. (It did not help that he ran from police, offered an alibi the jury rejected, and was on parole for another narcotics offense at the time of his new arrest.)
His family was devastated. Indeed, his mother’s keening soon filled the room, and she made haste toward a door leading to a balcony overlooking Church Street. A marshal intercepted her before she could make it out the door.
A son led away in cuffs, his mother wild with despair. It was too much for the young man’s father, who stood in the hallway suddenly ashen and complaining of chest pain. Three lives crushed.
Analogy is a powerful tool. Over the years, I’ve thought that doctors must do a better job of counseling those facing despair over death and serious illness. What can a lawyer learn about walking clients and their families through the social deaths and dislocations litigation yields?
While illness and mortality may well come about because of our acts and omissions — I think of a smoker with respiratory illness, the fact remains that illness and death are inevitable. A good medical education must, I reasoned, teach doctors how to cope with the inescapable end-of-life decisions patients face.
So I read Atul Gawande’s latest book, Being Mortal: Medicine and What Matters in the End, looking for answers. Surely, a surgeon can teach a criminal lawyer what to do and what to say when life as patient/client is in the balance.
Being Mortal is a sustained look at end-of-life decisions in medicine. The conclusion is simple: Yes, death is the enemy, but it is not an enemy to be resisted at all costs. Blind resistance to death at the end of life can destroy the quality of the life that remains, he argues.
Gawande visited hospitals, hospices and home-care providers to learn what they can teach about how to make better decisions about health care in the face of mortality. He also recounts deeply personal decisions he and his family had to make as his father’s illness reached its terminal stages.
Gawande counsels engagement with a patient, a role not all physicians are trained, or equipped, to perform. Ask a patient what they value in life. Reason with them how much they are prepared to risk to keep the ability to do what they value. A reasoned assessment of life chances can, and will, lead to decisions to cease fighting against the inevitable when all this is purchased with further effort is a feeding tube and a ghastly ending.
Nature wins, in the end, bringing all of us to dust. There are no successful appeals from death’s final judgment.
I suppose that’s what makes the law and medicine so different. Nature attacks and consumes, turning on the living, in the doctor’s world. In the law, the damage we do to one another is a product of human agency, and it can always be undone — hence the dogged pursuit of appeals, petitions and post-conviction relief among those sentenced to long terms of imprisonment.
A doctor’s world makes an ally of all in the profession against an external foe. Medicine, a fledgling science, is united by a commitment to scientific and humane norms, requiring the cooperation of all professionals seeking common aims.
Not so the law.
The law celebrates conflict. Lawyers exist in a culture that thrives on adversarial combat, and not cooperation. Accuse my client of a crime, and my first thought is how to refute your allegations. The contributions that lawyers make to civilization are indirect, a byproduct of the conflicts in which they engage. The rule of law is not a mathematical formula, it is consensus, commitment and submission to orderly process.
I read Gawande with a growing sense of envy. Medicine may not know how best to cope with end-of-life issues, but at least the professionals have a sense of working toward a common end. All is discord in the law, justice done in bold and often crushing blows.
Years ago, C.P. Snow, a British chemist and novelist, wrote about the cultural divide separating science and the humanities in The Two Cultures. He urged greater efforts to assure that scientists understood things of the human spirit, and that those learned in the humanities be anchored in some basic understanding of the physical world.
There is an even more glaring cultural divide — the separate worlds of law and medicine, two professions that share management of crisis, but are divided in method, temperament and culture.
Gawande’s book filled me with admiration and respect for physicians. The collaborative effort always to do better, to experiment, to report results, to share conclusions. It is a world of light amid the darkness death and illness represents.
Perhaps lawyers can’t learn from physicians. We bring our darkness on ourselves. The truths we search for aren’t found in a lab. Our truths are fought for in adversarial trials, where each side adopts the role of advocate in a ferocious zero-sum game.
Who teaches lawyers to walk bravely in the shadow of death? Not doctors, I am afraid. Perhaps no one.