THE LAWYERS-Legal Gamesmanship May Take Toll
The New York Times
September 24, 1998 By WILLIAM GLABERSON
WASHINGTON -- In the Watergate era, the misdeeds of lawyers provoked a national discussion about whether "legal ethics" was an oxymoron.
Now, President Clinton's troubles have ignited a new and broader debate about the role of lawyers in American society. But this time, the issue is not whether they broke the law but whether lawyers and their way of thinking have become so pervasive that legalistic gamesmanship is dominating politics -- and, perhaps, everyday life.
"There's been this intrusion of the adversary process into life as a whole," said Daniel R. Fischel, professor and dean-elect of the University of Chicago Law School, "and it colors everything: the way people interact, what they say, their willingness to cooperate with each other."
Professor Fischel said the Monica Lewinsky battle seemed to highlight a growing worry about whether the lawyerly ideal of prevailing by destroying the opposition had pushed aside other American values like trust and cooperation.
In the Lewinsky investigation, legal definitions sometimes seemed to prevail over common sense. Clinton's contortionist language, which much of the country saw in his videotaped grand jury testimony shown on Monday, has come to be seen as the ultimate example of such legal hairsplitting.
In his testimony, for example, Clinton wondered aloud "what the meaning of the word 'is' is," as he explained why he had not taken issue with his lawyer's earlier comment that "there is absolutely no sex" between the President and Monica S. Lewinsky.
"If 'is' means is and never has been, that is not -- that is one thing," he testified. "If it means there is none," he continued, "that was a completely true statement.
"Now if someone had asked me on that day, 'Are you having any kind of sexual relations with Ms. Lewinsky,' that is, asked me a question in the present tense, I would have said 'no.' And it would have been completely true."
His answer might have won praise in Trial Tactics 101. Instead, it drew ridicule and added to the backlash that has been building across the country against the use of legal fine points and distinctions.
"There is a perception increasingly shared by lay people, but also by lawyers," said Anthony T. Kronman, the dean of Yale Law School, "that the gulf between the law and common sense has opened up in this crisis to a considerable degree. And that has caused people to lose confidence in the law."
Clinton, a former Arkansas Attorney General who has always seemed drawn to legal distinctions, drew rebukes even from senior Democrats for asserting that his replies regarding the definition of sexual relations agreed upon in the Paula Jones suit were "legally accurate."
"The President and his advisers are going to have to accept that continued legal jousting serves no constructive purpose," said Senator Tom Daschle of South Dakota, the Senate minority leader.
Representative Richard A. Gephardt of Missouri, the House minority leader, said, "The considered judgment of the American people is not going to rise or fall on the fine distinctions of a legal argument."
But the concern that legalisms are leading the country out the door of ordinary logic has hardly been limited to the White House. Kenneth W. Starr, the Whitewater independent counsel, has also been fighting off accusations that his investigation was little more than a lawyer's artificial construct.
"I am not going to answer your trick questions," Clinton said to one of the Starr lawyers.
Starr's critics call his investigation a mere perjury trap, which they say existed solely to impale the President on his own legalisms. Without the Starr inquiry into whether Clinton lied in a deposition in a civil suit that was later dismissed, the critics say, there would be no question of impeachment.
Some of Starr's critics say one explanation for the President's continuing strong showing in public opinion polls may be that Americans view the Starr assertions, Clinton's defenses and virtually everything else about the battle in Washington as legal skirmishes that have little to do with real life.
Starr's report to Congress included scores of examples of such lawyerly logic. In great detail, for example, it spoke of lies Clinton told top aides like John Podesta, the deputy chief of staff.
Lawyers say Starr was inventive in his assertion that Clinton violated the law by telling lies to his own staff members in private meetings. Starr argued in his report that Clinton's lies to his staff, knowing all the while they might be called to testify about his denials, amounted to obstruction of justice.
Both the President and the independent counsel, said David W. Leebron, the dean of Columbia Law School, are reinforcing a stereotype of lawyers and their reasoning that is detached from reality.
"The public perception is that the visible lawyers on both sides -- including the President -- are not reassuring about the use of law in pursuing justice in our country," Leebron said. "On the side of Ken Starr, many people have come to feel, it is legal procedure run amok -- the use of legal tools totally without discretion and judgment."
In their televised questioning, the Starr lawyers often seemed unable to resist lawyerly pursuit of the obvious. They defined "phone sex" and framed such inquiries as "If there is a semen stain belonging to you on a dress of Ms. Lewinsky's, how would you explain that?"
As the details have come spilling out, it seems that everyone, even Ms. Lewinsky, who is not a lawyer but knows plenty of them, was addicted to legal distinctions.
In Ms. Lewinsky's case, Vernon E. Jordan Jr., the President's friend who was helping her get a job, asked her if she and the President had had an affair, Starr's report said.
Ms. Lewinsky, not yet 25, saw the question as just another legal maneuver, the Starr report concluded. She answered 'no' because, prosecutors said, she "interpreted Jordan's questions as, 'What are you going to say?' rather than 'What are the answers.' "
Long before the Lewinsky case, there had been a growing concern, even among some legal scholars, about the intrusion of too much lawyering in America, voiced through books, seminars, cartoons and general handwringing. The events of recent weeks have catapulted those concerns to new levels among some of the nation's most influential legal educators.
One legacy of the Lewinsky era is sure to be a re-examination of the influence of lawyers on the country, said Ronald A. Cass, the dean of Boston University School of Law.
"The question," Dean Cass said, "will be whether lawyers are serving any real purpose in life or whether lawyers are simply engaging in semantic arguments that don't make sense to ordinary people."
That debate, said Derek Bok, a former Harvard Law School dean and former president of Harvard University, "is very much a reflection of our culture -- we believe in competition."
"People like the competition," Bok said, "but they want a kind of wise restraint that is probably asking too much of human nature."