I would like to thank all the people with whom I have discussed these matters over several years. This essay develops certain ideas and reemploys some of the same language found in part of “The Moral Lawyer: Making Out a Life in Law” in Buckingham, Donald Bickenbach, Jerome Bronaugh, Richard and Wilson, Bertha eds, Legal Ethics in Canada: Theory and Practice (Toronto: Harcourt Brace, 1996).Google Scholar

1. I hope the reader will not be put off by the artificiality of this structuring of motives. Of course, no one has just one of these through a complete life. 1 am thinking of what one might call a sufficient preoccupation in all of what one does over substantial periods of time. There is a fourth motive which is also often mentioned as well. It is truly rarely analyzed, and 1 find it deeply puzzling if it is something unconnected to the three motives I have mentioned. It is the motive of prestige or being honoured. If it were to be discussed here as a separate motive, it would have to be sought for itself and not as something that helps to make money, win cases, or reassure one of the merit of what one does. I am prepared to think it is best related to the final one just mentioned and not something sought for itself.

2. Without citing any one author as a cynic, 1 could simply deploy the classic party Hart calls ‘the rule-sceptic, who believes that judges are “unfettered” and that law is a game of “scorer’s discretion”. See Hart, H.L.A. The Concept of Law (Oxford: Oxford University Press, 1961) at 138f.Google Scholar

3. Happiness is a difficult topic; philosophers, after the Greeks, have not discussed it as much as one might expect. My main reason here for introducing it is that the topic of unhappiness in legal practice is very frequently discussed today. My analysis is highly abstract, but its meaning should trickle down even to topics such as the high leveraging of associates and the discontent of women lawyers. It does not apply to the unemployed lawyer.

4. Examples of values constituent of happiness are self-respect, knowledge, stimulation, receiving and giving love, health, the absence of frustration in one’s goals, and peace of mind. With them, whatever else they do for us, we can rest content. While such values can be helpful also to secure other values, their value is not ulterior. Nothing much, however, depends upon the perfection of this distinction. It is useful because, even if happy people accomplish more than others do, the two elements of happiness are not merely instrumental to some other end whatever it may be.

5. Right-wing politics wants welfare payments to be enough for survival but short of a minimum livable sum. The happiness of welfare recipients is not of much interest to the political right, though no one wishes the poor to starve.

6. In Holmes, Oliver Wendell Jr ., “The Path of the Law” in Collected Legal Papers (New York: Peter Smith, reprint 1952—original 1920) at 167.Google Scholar The essay first appeared in (1897) 10 Harv. L. Rev. 457.

7. This does not mean for lawyers that the quality of their work automatically must slip; it is possible both to do good work for clients and do it only for money—especially highly routine matters. In more difficult cases, there may be a problem.

8. The Lost Lawyer, (Cambridge MA: The Belknap Press of Harvard University Press, 1993) at 300-01. This, it should be observed, may be too simple for all cases. For one thing, one should not exclude other responses to a bad workplace. One might quit, or try to overcome the alienation within oneself through a better attitude to what one does, or struggle to get external job conditions made better. My point would be that if one does the job without such changes, one must be doing for the money. Kronman also writes, “Lawyers working in large firms thirty years ago … did not see their work in purely instrumental terms, as nothing but a means for making money. Indeed, until quite recently the culture of large-firm practice tended to encourage the different view that … the work of lawyers … offers satisfactions that make the doing of it valuable for its own sake.” Ibid, at 294.

9. Kronman’s ‘intrinsic’ value would seem to cover both constituent and ulterior value. What he calls instrumental value 1 have called ‘merely instrumental’, as having no close connection with constituent values.

10. Also that the money show a proper regard for the years they had spent in learning how to generate this value. “Why is it that law and medicine are our most highly paid professions? Adam Smith … sketched the answer. High wages in a profession are necessary to compensate an entrant when great expenses must be incurred for learning its trade.... The money value of time is measured by the rate of interest on other work opportunities forgone.” Rosen, Sherwin “The Market for Lawyers” (1992) 35 Journal of Law & Economics 215 at 216-17.Google Scholar In a context of mandatory retirement, the uncompensated loss of, say, five years of work in order to be trained is a loss experienced at the high earning years at the end of a career, not from the first five years of work. This thought does not usually occur to those who are training for a job. They think they are forgoing money in the present. On the contrary, one gets paid for those first five years because one eventually works them; where one fails to get paid is for the last five that one does not work due to retirement. This makes clearer what is involved in the great expenses incurred in entering a profession for which years of education are required.

11. Many charming films have been made, especially in England, depicting elaborate crimes, e.g., tunneling into armoured vaults to find a cache of gems, where the participants seem to find value on the criminal undertaking itself. These characters are always ‘experts in their fields’, such as blowing a safe or driving the getaway van. Everything is planned to perfection and carried out with consummate professionalism. In order to be happy at one’s job, one must value (the experience found in) the very job as such. Though the film’s characters always have plans to use their part of the loot to live comfortably in Rio, they are made to seem to place value on burglary as such, as kind of work of art and source of self-respect. The charm in these films rests on this paradoxical aspect: doing ‘a job’ (simply for the money) as if it were something that is valuable as such.

12. I will not be considering the often-heard Invisible Hand argument that justice overall will out if lawyers but suppress their personal assessments and go for victory. This Adam Smithish idea, to be frank, is nothing but a pious hope. One might read Gerber, R.J. “Victory vs. Truth: The Adversary System and its Ethics” (1987) 19 Ariz. St. L.J. 3.Google Scholar

13. It may be true that lawyers will often say a case has ‘merit’ simply for the reason that they think it can be won. The suggestion was made to me by the Hon. Bertha Wilson. I shall be considering, and challenging, this reduction in the argument to follow. For now the distinction between the meritorious and the winnable is simply assumed to be valid.

14. Is there the same difficulty with the policy of making victory sufficient but not necessary? I think not. One who acts on merit finds in demerit a problem while one for whom victory is sufficient may easily allow that it is not necessary. When victory is merely ‘enough’, one can be prepared to eschew it for merit (or something else like money, which can be earned even as one loses) as one cannot eschew merit and still have adopted a policy of ever acting on merit at all. The problem is not of logic but of substance. One could adopt the policy of taking all cases that please Allah and simultaneously the policy of taking all cases that displease Allah. In so far as one has two sufficient conditions and no necessary one, there is no logical inconsistency within the policy. The logical effect, however, is to make Allah’s pleasure and displeasure irrelevant. At a practical level something is not right about the overall policy for this reason: each part in its own character suggests rejection of the other, so conjoined together neither is as serious as each must seem to be alone.

15. We are sure even in sports that one side can win without deserving to. I will, however, consider in due course what occurs when the reduction is made: when one does regard winning as a type of merit.

16. Do not people sometimes think that they deserve good luck? Various errors of reasoning give them a hand here. There is the ‘gambler’s fallacy’, namely, that after repeated losses one’s luck must change. (Probability theory says it won’t.) Or they allow ourselves to think that long-time losers ‘deserve’ to win a game of chance, though first time players never do. (But no reservoir can be built from doggedness except frustration.) Or they think that to ‘make up’ for past unfair losses, there are lucky gains that they deserve to grab. For example, one may decide to pocket a shop clerk’s substantial error thinking that surely elsewhere one has been short-changed as much or more. (This is a mere rationalization that does not justify keeping the money.) Bad luck may interfere with genuine desert, as when the prosecution’s evidence is lost due to a power outage at the lab. Did not they deserve an absence of such bad luck as a power failure—that is, deserve good luck? The fact that they did not deserve to lose the evidence (they had been careful) does not entail that they ‘deserved good luck’. Finally, ultra-modest winners of games of skill, in order to underplay their desert, claim nothing for themselves beyond good luck—they are of course too modest but see aright the absence of a relation between desert and luck.

17. People, I suspect, quietly think that simple games of chance test which way the wind is blowing; otherwise playing them without a secondary purpose could offer little amusement. Normally, to attract much interest one must raise the stakes and bet upon the outcome.

18. A lawyer who is not paid unless she wins has a financial incentive to look first to the possibility of victory (merit is second if at all). Those who advocate contingent fees may mix this up. Gavin MacKenzie writes: “Indeed, the fact that plaintiffs’ lawyers must bear the risk of not recovering the value of their time and disbursements itself is a real disincentive to the prosecution of unmeritorious litigation.” He also writes: “It is not realistic to expect that lawyers [hired on a contingent fee basis] will take on cases in which there is little prospect of success.” MacKenzie, Gavin Lawyers and Ethics: Professional Responsibility and Discipline (Toronto: Carswell, 1993) at 12–4.Google Scholar Because merit and success are logically distinct, only the second statement of the two just quoted is obviously true. The first claim rests on the hope that where merit exists a victory is more likely than a loss; yet merit and victory are not the same.

19. Of course there may seem to be something paradoxical in hard work towards an arbitrary outcome, but not really. The structure or context in which one works may require that many labourious but basically arbitrary steps be taken to reach the point in the contest where one can become the beneficiary of a lucky break. It would of course be the position of the legal cynic that it would work just as well to ask over the phone for the judge to flip a coin. If the wheels of justice must grind slow, a clerk for the judge could send the outcome to the lawyer by mail.

20. “A Lawyer’s Duty to Represent Clients” in The Good Lawyer, supra note 23 at 228. If there are no good uses, it is without significance (or value as such).

21. Cf. Donagan, Alan “Justifying Legal Practice in the Adversary System” in Luban, David ed., The Good Lawyer (Totowa, NJ.: Rowman & Allanheld) at 142–44.Google Scholar

22. This difficulty was raised, but not answered, for me by Robert Binkley.

23. I do not consider in this paper the lawyer who takes pride in advocacy even as she loses. This kind of pride must engage motivations other than merely winning or money, the two to which I have limited my discussion. Michael Cormier raised the point with me.

24. I would resist any claim that one professional player deserves to win because she is more needy, will spend the prize on worthy projects, etc.

25. Yet even to debate ‘pure skill or chance?’ requires the denial of external merit to the law—the prior acceptance of cynicism. So the question of a game’s purity absolutely depends upon whether the cynical hypothesis is true about external merit.

26. As I have defined those terms, the ‘merely instrumental’ will produce indifferent effects which are neither ulterior nor constituent of what is worth having for itself. Money has merely instrumental value.