Old Lady Lawyer: Meet Fred Rodell -- He Has Our Number

A book on the legal profession from the 1930s s just as prescient and on point about us and our profession as it was when first published almost eighty years ago.

What? You’ve never heard of Fred Rodell? Let me introduce you. Fred Rodell was a Yale Law School graduate and then Yale Law professor for more than forty years, but he never took a bar exam; he didn’t want to.

Rodell has a very iconoclastic view of lawyers and the legal profession; he takes no prisoners in his harsh criticism of our profession and those of us who toil therein. Nowhere are those beliefs better explained than in his book Woe Unto You, Lawyers! (affiliate link). (Exclamation point in the original.)

Although the book was written initially in 1939 and then republished in the 1950s, so it’s obviously dated in some respects, it’s just as prescient and on point about us and our profession as it was when first published almost eighty years ago.

Rodell has very little good to say about us and the practice of law. He sees The Law (his capitalization, not mine) and lawyers as obstructions to society rather than helpmates and although his views may well have been considered outrageous at the time (and maybe to some people they still are), his thoughts are more mainstream than one might think.

Law schools are not spared. Rodell calls them “citadels of logical legerdemain,” and thinks that legal education should teach law students that the law is merely a means to the end, which is solving the client’s problem. Rather than focusing on The Law’s abstract principles, he believes law schools need to teach students how to use business and common sense to resolve disputes, rather than reliance upon legal theory.

The judiciary also comes in for withering criticism. As an example of judicial nattering, Rodell translates, paragraph by paragraph, into plain English, a United States Supreme Court opinion. How many lattes and/or other caffeinated drinks does it take in an effort to not nod off while reading a decision? How many times have we read them time and again in order to distill what’s in them when simple English would achieve the same result in a lot less time? Precisely Rodell’s point. To him, The Law is a lot of empty words.

Here are a just a few of Rodell’s pithy and prescient remarks about our profession. Remember that these comments were first made almost eighty years ago and republished during the days of the Eisenhower (Google him) administration. I was going to paraphrase, but his observations are so spot on and there is so much to choose from, that it’s much more fun to read them in his own words. My dilemma has been what to select. Here’s just an amuse-bouche, as high-class restaurants would say:

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  • “For one of the most revealing things about the lawyers’ trade is the unanimous inability or unwillingness, or both, on the part of the lawyers to explain their brand of professional pig Latin [sic] to men [sic—remember this was first written in 1939, need I say more?] who are not lawyers.”
  • “Only The Law, inexorably devoted to all its most ancient principles and precedents, makes a vice of innovation and virtue of hoariness. Only The Law resists and resents the notion that it should ever change its antiquated ways to meet the challenges of a changing world.”
  • “The fact is that every lawyer claims to know all about The Law until it comes down to applying The Law to a specific dispute.” He’s got us there. What are an attorney’s two most-used words? Not “guess again,” but “it depends.”
  • “The last thing any court will ever admit, even when it is being quite practical about what it decides, is that practical considerations have anything to do with the decision. To admit that would be to admit that it was not The Law—that pile of polysyllabic abstractions—that dictated the answer.” How many times have we read opinions where it’s clear that a court has twisted itself into a pretzel to reach a particular result?

How many times have we drafted or reviewed all sorts of agreements, be they leases, contracts, or letters in legalese, in language that no mere mortal (e.g. client) can understand without lengthy explanations in more legalese? Boilerplate language is a perfect example. We make ourselves indispensable, Rodell says, by our need to translate into simple un-lawyer English. No wonder no one loves us. (See Joe Patrice’s article last week on Love Your Lawyer Day.)

Why do we write this way? Why do we explain concepts in legalese? Rodell’s answer is simple and will offend many who aren’t familiar with him and/or who haven’t read this book. His explanation: the legal profession is a high-class racket, a protection racket for those who make their livelihoods at the bar. He says that every legal agreement is drawn up, not to avoid litigation, but in contemplation of it. He argues that if agreements were written in simple, specific terms and in understandable language, there would be fewer misunderstandings and less litigation. So stipulated.

Non-traditional legal service providers get this. Legal Zoom and others now delight in capturing work that was once the sole province of lawyers because we were ostensibly the only ones who could translate the legalese of statutes, regulations, and opinions and draft enforceable agreements. Not any more.

In fact, if Rodell were alive today, he would probably take great delight in what is happening to the profession across the board. He would say that the changes, which are driving down lawyer revenues and altering the ways we practice, have been long overdue. He might even say that blindfolded Lady Justice now sees or that the emperor no longer has any clothes. What he said all those years ago is that the jig should be up, and, if it wasn’t up then, it is now.

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Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at oldladylawyer@gmail.com.