There are some who might say that it is overly ambitious to try to fit all of the problems plaguing the legal profession into a mere 223 pages. That being the case, perhaps it is too much to ask for such an ambitious project to also include a more detailed and finely wrought solution to all those problems. Bad lawyer jokes aside, The Trouble with Lawyers is nothing less than what you would expect from a Stanford law professor with an august career who commands the respect, as well as many laudatory reviews, from other legal scholars from equally impressive institutions.
Most notably, author Deborah L. Rhode uses effortless prose, seemingly well-reasoned arguments, and citation after citation to make the unrelenting case that the legal profession is in trouble. Her citations alone take up 73 out of the 223 aforementioned pages, and are a gold mine for savvy researchers looking to learn more on the topics on which she writes. So much so in fact that one can ignore the fact that Rhode echoes other recent pot shots at law reviews by noting that in lieu of any actual knowledge, training, or expertise, articles are often picked by student editors for their appearances of scholarliness. Appearances that are often illusions made possible by excessively tedious erudition and sophomoric citations, which, as Rhode notes, “are no guarantee that the author has actually read the sources cited, or that they represent the best thinking in the field.” Here at least though, Rhode is not guilty of being a pot calling a kettle black. A review of the citations reveals an acceptable quality of effort and research, and their use is well placed to shore up Rhodes's arguments and do not approach the absurdity of Rhode's own example of a 490-page article with 4800 footnotes written on “a single section of a securities statute.”
Her research and elegant prose aside, there are two shortcomings, which may not be shortcomings but are worthy of mention nonetheless, and one very real shortcoming. To begin with, the first possible shortcoming has already been identified. Although Rhode does an admirable job of diagnosing the various diseases that currently afflict the legal profession, the reader will undoubtedly be left somewhat dissatisfied with the various cures offered. The somewhat unsatisfying nature of the cures presented is forgivable however, in part due to the fact that Rhode's efforts to blow the warning horn are worthy in and of themselves, but also because Rhode herself rightfully observes that comprehensive solutions require greater awareness of the problems coupled with subsequent research, as well as a change in attitude of those in the profession that: a) these problems are solvable and that many solutions already exist, and b) that what is absent is only the will to institute the changes necessary.
The second possible shortcoming is that while Rhode does successfully make the case that those in the legal profession need to recognize and face the challenges she outlines, she fails to provide a clear incentive for why they should. To be fair, the incentive is there in a theory –those in the legal profession would be better served if they care for the health of their own profession. She even couples many of the solutions with specific benefits that would be reaped by all involved. Law firms for example, who take diversity and inclusion seriously will benefit not only women and the underrepresented minorities in the profession, but will also benefit the law firms themselves as studies indicate that a diverse workforce is a more effective workforce.
Other incentives, however, are less clear. Rhode does little to connect law professors, who enjoy a high degree of satisfaction with their role within the legal profession, to law students who feel buried alive under a mountain of student debt. For example, proposed alternative law school models with two instead of three-year programs, mandates to incorporate practical experience into the curriculum, or the use of more adjuncts instead of tenured faculty seem counterintuitive to the best interests of professors who enjoy a high degree of satisfaction precisely because the system that weighs heavily on the financial futures of law students is what helps provide law faculty with secure jobs, high salaries, and freedom to pursue their own scholarly interests. So too, the prescription that law schools should demand more information from law firms about the stress-inducing work culture in firms, and provide an accurate picture to law students of what they should expect upon graduation, seems unlikely when the unrealistic picture of lawyers in the media does much to keep applications to law schools from plummeting completely. As Rhode herself notes “No one makes films titled Adventures in Document Production or The Man Who Did Due Diligence.”
To be fair, Rhode prescribes that law schools work to engender students with awareness of the reality of what working in a large law firm entails and strategies for improving the legal profession once they leave law school. One of the strategies, however, for lawyers entering the workforce is to organize colleagues, “both within and across workplaces to improve diversity and policies for balancing work and family.” This strategy is somewhat daunting considering the ultra-competitive nature of the profession (that is nurtured by the environment in most law schools), and the fact that the ever steady stream of law graduates churned out by law schools allows law firms to pick and choose the young lawyers who will not band together to create a culture where they can enjoy their weekends, or the young lawyers who will demand to work on more pro bono cases to increase access to justice but won't add to the firm's bottom line.
The one real shortcoming in Rhode's book is in the chapter on diversity in the profession. Here Rhode advises that aspiring female lawyers need to “strike the right balance between ‘too assertive’ and ‘not assertive enough’ when paying attention to unconscious biases and exclusionary networks” that could prevent them from reaching the higher echelons of the legal profession. The rationale is that while women should not have to cater to how men, society in general, and even other women think women leaders should behave, it is the reality. Rhode argues, as an individual, a woman's strategy to increase diversity in the profession should be to work on being “relentlessly pleasant” and to follow in Sandra Day O'Connor's footsteps by being a “sharp gal” but one who also uses her “lovely smile” as often as possible.
Of course, it may very well be that Rhode is correct to give this advice to aspiring female lawyers, but that does not make it any less tragic that to increase diversity, all women in the profession should aspire to be the same woman. They should aspire to be the woman who might be smart as a whip, but who leads with a gentle touch. Even in a chapter on diversity written by a leading female legal scholar, it would appear there is no room for a woman who can tell it like it is and march into any meeting with the same swagger as her male counterparts. While other members of the profession are told to fight against the status quo and to push for better work/life balance, more pro bono hours, lower tuition costs, and institutional and organizational structures that support access to justice, women still must accept and find ways to cope with the reality of how the system is rigged against them, instead of aspiring to change the profession into what it should be.
This shortcoming aside, The Trouble with Lawyers is well worth the read, precisely because it raises a lot of unanswered questions and will leave the reader somewhat dissatisfied. The reader won't and shouldn't turn the last page and think that Rhode has all the answers, but she should want to seek out the answers herself.