Articles
Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

At the bar of possibility

“The word ‘democracy’ is a great word, whose history …

remains unwritten, because that history has yet to be enacted.”

– Walt Whitman

The journey of the hero in the great masterpieces of world literature captures and inspires our hearts. Reading Gilgamesh, for example, is one of the best things that can happen to a person. But of all the heroes’ tales out there, my favorite is the story of the birth of the American republic that occurred between 1763 and 1789. This story is about a collection of heroes, the Americans, and their search for principles that culminated in the adoption of the federal constitution. From the inauspicious events at Lexington Green to the declaration of American independence; from war with an empire to the creation of the confederacy of independent states; from the critical period of the confederacy to the creation of our federal constitution, the most brilliant system of government the world has seen. It is a noble tale, one of daring and revolution, that continues to reverberate around the world today.

Walt Whitman called America the “greatest poem” because we are the first experiment in national self-creation whose promise remains forever unachieved. As lawyers, we embody the national pride of the heroes of the founding era.  The unrivaled insights of Alexis de Tocqueville regarding the pivotal role of lawyers as leaders in American representative democracy ring true today: “There is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Lawyers are at the intersection of our founders’ carefully crafted balance between democracy and the rule of law. We are stewards of both. Through our work, we have the chance to continually create the promise of this “greatest poem.”

Much has changed since Tocqueville made his observations in 1835, raising questions about whether his faith in lawyers rings true today. The transformation of the legal profession has made it harder to be the lawyer statesman Tocqueville envisioned. The rise of big law, the specialization of our practices, and the inordinate demands on our time can cut us off from civic participation. Can we discover where the public good lies and create ways to secure it in light of our community values, customs, breadth of practice experience, and constitutional structure?

The justice gap creates the risk that justice is not equal for all, both as a matter of perception and reality. We increasingly see accountants and business people being hired over lawyers. We watch the bi-annual efforts to fund our state’s justice system. People who have the resources to retain lawyers choose to represent themselves. We may ask, are lawyers still trusted and valued for their special knowledge and problem-solving skills?

In the face of the significant justice gap, disruptive innovators entered our legal services market, demonstrating that standardized legal services can and will be provided by nonlawyers. As traditional lawyers’ work is being provided by nonlawyers, and nonlawyer providers move into providing customized legal services, we may ask, who is defining the nature and scope of the practice of law for the future?

Our newest lawyers emerge from law schools based on outdated education models that do not meet the demands of the legal market. Our next generation of lawyers struggle to find jobs, pay off crushing student debt, and assume positions of leadership in our profession. The legal profession is the most hazardous to our health. The risks of alcoholism, chemical dependency, depression, and anxiety hit our newest lawyers the hardest. We must ask, how are we going to support and grow this next generation of lawyer leaders?

As our profession transforms, we are at the bar of possibility.

For Whitman, the genius of the United States was rooted in the common people and their ability to produce unity out of pluralism, “out of the many, one.” He declared, “[o]f these States the poet is the equitable man.” The equitable man is one who sees and acts justly:

Nothing out of its place is good, nothing in its place is bad,

He bestows on every object or quality its fit proportion, neither more nor less,

He is the arbiter of the diverse, he is the key,

He is the equalizer of his age and land,

He supplies what wants supplying, he checks what wants checking,

In peace out of him speaks the spirit of peace, large, rich, thrifty, building populous towns, encouraging agriculture, arts, commerce, lighting the study of man, the soul, health, immortality, government…

He is no arguer, he is judgment, (Nature accepts him absolutely,)

He judges not as the judge judges but as the sun falling round a helpless thing,

As he sees the farthest he has the most faith,

His thoughts are the hymns of the praise of things,

In the dispute on God and eternity he is silent…

By Blue Ontario’s Shore (excerpt).

At the bar of possibility, are we not Whitman’s poets? Are we not the equitable man?

The biggest threat to the promise of democracy is what John Dewey called “stasis,” a time in which people take for granted that the purpose of our country had been accomplished. When we are in stasis, we become spectators rather than agents, diminishing our role in continually enacting the American potential. Dewey was also concerned with a core limitation of the human condition—the failure of imagination to reach beyond itself and question the status quo. Could it be that our current notion of what it means to be a lawyer and a bar association defines our world of possibilities and that world of possibilities keeps us from seeing our possibilities?

At the bar of possibility, we are the poets of the greatest poem, our country. Nothing could be more urgent than continuing to create that promise. We are in a period of transformation, what Thomas Kuhn called the period between paradigms, where our current ideas about what it means to be a lawyer and a bar association do not fully fit with our transformed environment, but we have yet to experience the gestalt switch, that moment when we live in that future paradigm based on a changed world view.

Kuhn admonishes that new scientific truth does not usually triumph by convincing its opponents and making them see the light, but rather because of generational change. How can we create optimal conditions for transforming the state bar into an organization that better empowers our lawyers to empower their clients, the profession, and the community?

First, we must create a free marketplace of ideas and connection so that people can find one another and share ideas, unconstrained by existing organizational silos, leadership roles, and geographical distance. This is the power of communication and transparency.

Second, we need to value people for their differences. This is because these differences will push us beyond our set of possibilities and give us a chance of seeing what we can’t currently see. This is the power of real diversity and inclusion.

Third, we need to value those people with a growth mindset—a mindset that always questions the status quo and asks, can’t we do better? This is the power of creativity and innovation.

Fourth, we need to make the commitment that “everybody wins.” The success of our profession depends on our making sure that the bar works for everyone, with no one left out. We need to see that we fail as a group if any individual is left behind. This is the power of “we.”

Finally, we need to make it our number one priority to grow and nurture our next generation of lawyers. This is because they are the ones who are going to create a new vision of what it means to be a lawyer and a bar association in the 21st Century. They are the ones who are going to help us see the possibilities, because they are not limited by the possibilities that define our generation. This, in the end, is the power of the gestalt switch, the culmination of our transformative journey, the pathway that enhances lawyers’ ability to enact the American potential.

 

Robin-Wolpert-HeadshotROBIN M. WOLPERT is a legal strategist, litigator, and appellate lawyer at Sapientia Law Group, where she focuses her practice on complex business litigation, data privacy, constitutional law, and political law compliance. Robin represents clients in litigation involving private parties or the government, parallel civil and criminal proceedings, civil and criminal appeals, and investigations.

Leave a Reply

Articles by Issue

Articles by Subject