Last Updated on March 29, 2008
The practice of law is a peculiar exercise in combining the theoretical with the practical; in that sense, perhaps it is an anomaly in that the two disciplines rarely intersect, and the great divide between a conceptual discipline and a practical one is defied by the ‘practice’ of law. Indeed, the very phrase ‘practice of law’ is an anomaly — it is in Aristotle’s Nicomachean Ethics that the Greek philosopher notes that moral growth “comes about as a result of habit,” revealing to us the banal truth that excellence in something comes about through the habitual practice of that thing. Such a truth should be self-evident and unsurprising; yet, reflection on the very idea that to ‘practice law’ is to gain a level of competence and excellence in the endeavor is a frightening concept – especially for the client upon whom a lawyer practices. But, of course – it cannot be avoided; just as wisdom is reached through age, experience, encounters with difficulties, and overcoming life’s episodic challenges; similarly, a lawyer becomes competent in an area of law through the experience of research, preparation, depositions, trials (both wins and losses) – through the ‘practice of law’.
For the beginning attorney, the practice of law can be an unnerving prospect; for neither wisdom nor experience has yet been gained; ‘practice’ can be one of trial and error – literally. And even for an experienced trail attorney, the prospect of an overlooked detail, of an unexpected answer from a witness on the stand, or a sentence in a document that suddenly takes on a destructive life of its own in the midst of a trial – these practical aspects of law are what makes being a lawyer both exciting and angst-filled. Leibniz once wrote that virtue “is the habit of acting according to wisdom. It is necessary that practice accompany knowledge.” It is this latter statement – of the necessity of knowledge accompanying practice – is what is often ignored. The practical aspect of ‘practice’ in law does not mean practice without knowledge; and that is the difference between competence and incompetence. The great tool of a lawyer must always begin with the theoretical side of the discipline – knowledge. For knowledge is gained through study, research, observation and a humble recognition that we can never know enough.
Law combines the theoretical (research of case-law; systematic and logical argumentation of legal principles, etc.) with the practical (courtroom strategies; voicing sustainable objections; having the rhetorical ability of persuasion, etc.). In this world of pragmatism, however – where the practice of law is driven by profit-motives; where law has become not a profession, but rather a business; and where the art of trial-work too often gets reduced to obnoxious and aggressive acts of unprofessional behavior – the theoretical is too often expendable; the success of a case is based too often upon courtroom strategies.
We have lost something in this age; whether because technology has left irrelevant the necessity of quiet reflection; where poetry and metaphor can no longer impact the mind; or because we need constant entertainment as opposed to sustained meditation upon conceptual conundrums (reflect: if Wittgenstein, Wisdom, Derrida, et al are correct, that there are no substantive philosophical problems to be solved, and all that we are confronted with is a confusion of language, then what substantive issues are left which require sustained meditation?); and the loss of that which we must recover may be found in the very principle of ‘virtue’, or arête (ἀρετή) as found in Aristotle’s Nicomachean Ethics (Book II, Ch. 6), where he states, “Virtue then is a settled disposition of the mind determining the choice of actions and emotions, consisting essentially in the observance of the mean relative to us, this being determined by principle, that is, as the prudent man would determine it.” Arête is a principle with a pervasive quietude of enveloping profundity; it is a state acquired through habitual application over time; it cannot be reached in an episodic instance; it is almost a Zen-like principle (and yes, I have no qualms about using this term, despite being a Christian) where, if you ask yourself if you have acquired arête, then in all likelihood you have not. It is a level beyond mere competency or a quantitative roster of having won x-number of cases; it is, instead, a state of excellence.
We have lost that sense of having excellence as a goal, both in law as well as in all other aspects of life. We have goals to make money; to become an x; to go mountain climbing; we have financial and career goals; we have goals for our spouses, our kids – but when have you heard of someone saying, “My goal is to acquire arête“? It is a goal worth having; to reach a state of a life well-lived is a worthwhile goal. As the ‘practice of law’ is a combining of the conceptual with the theoretical, so is life itself; for as we mature, it is our conceptual framework; our ‘foundational beliefs’; our ‘noetic structure’; which determine our behavior in this temporal, short span we designate as ‘my life’ as opposed to ‘that other’. As with all disciplines, the practice of law is merely a microcosm of who we are in the macro aspect of living our lives. Hannah Arendt coined the famous term, “the banality of evil”; there is an even greater banality in the life we live as ordinary people – the banality of living a life of worth. That such a concept might become a banal one is of faint hope in this day and age.