Law in the time of covid-19

By Atty. Eduardo T. Reyes III

With the seasonable opening of law school classes still hanging in the balance because of health concerns brought about by covid-19, anxiety mounts for law students especially those about to take their comprehensive examinations, or the Bar. The pandemic poses as a daunting challenge because of the impact it could wreak on their legal studies. The inordinate delay in the opening of law school might heighten ennui to its sharpest.

Law professors and law schools play a significant role in the legal profession as they nurture the nest where great legal eagles of the future are hatched.

Justice Oliver Wendell Holmes, Jr. who is perhaps most-quoted for his eloquently-written decisions as a US Supreme Court Justice  in the early 1900’s and also considered by many as a legal philosopher, once said that: “The business of a law school is not simply to teach law but to teach it in a grand manner and to make great lawyers”.

 

Another US Supreme Court justice, Justice Stephen Breyer, remarked in his book “The Court and the World”, that:

 

 

“The legal profession has three parts, the judges, the lawyers, and the academics. When the system works well, it works iteratively. The judges decide the cases on the basis of the bar’s briefs, which in turn rests, not just upon experience, but also upon research, articles and treatises written by academics, and the academics base their work in part upon court decisions, amalgamated and criticized in light of research, which in turn feeds back to the bench through the bar, in principle producing better decisions”. (p. 114 The Court and the World by US Associate Supreme Court Justice Stephen Breyer).

 

This cycle- that consists of three parts- must perform in clock-work precision in order for the legal profession to effectively discharge its role in the administration of justice. In the academe, law professors and their students analyze, dissect, and even criticize court decisions to be synthesized as thesis, dissertations or articles, so that these could be fed off to the lawyers; who would, in turn, argue them in court. The aim is to enable the judges to assimilate these academic reviews and empower them to come up with better decisions with clear appreciation of the precedential value of jurisprudence through the prism of legal analyses distilled in the law school classroom.

In the world today where democracy is on a constant siege by emasculatory governmental impositions most of which were recently triggered by the pandemic, and when not carefully thought through, they could stymie the molding of nascent lawyers- a new breed of idealistic legal defenders who could be infused as front-liners in the bulwark of  the freedoms enshrined in the constitution.

It is acutely challenging for law professors to teach the law -either by Socratic or Langdellian method- when they are socially-distanced from their students. Just like in any field of study, the on-line method poses as a very tricky medium thanks to unreliable internet service and the steep price of acquiring a gadget or computer to access lectures by Zoom, Microsoft Teams or the like.

It is primordial that the teaching methods will not undermine the making of lawyers who must emerge from law school not as mere parakeets of empty legal provisions; but great lawyers who can argue in court what would not only be beneficial for their client’s causes but inspiring for the courts to churn out better decisions. And it is this overriding consideration that might suffer a setback should the government regulators be unable to strike a healthy balance between heavy-handed impositions in the name of a health emergency, and academic freedom.

And what should be this legal mettle that the law student must develop in law school? It could be argued that the great lawyer possesses three very important endowments,  which are: 1. The willingness to undergo drudgery in order to attain mastery of the law, 2. He/she must have the burning passion for the law; and 3. He or she must be a perfect gentleman or a lady. And all these three endowments are formed in law school. This should be the end-goal of every law school: to bring out the best lawyer in the law student.

Relative to the first endowment which is “the willingness to undergo drudgery”, it must always be remembered that the study of law is really the study about life because the law governs daily life. That is why lawyers are exhorted to always keep abreast with the developments in law and jurisprudence because the law is supposed to be in vogue. It’s interpretation or application cannot be obsolete or anachronistic. Therefore one has to be patient with the law. It is like holding a handful of sand in one’s hands; if held too loose, the grains of sand will fall.  Grip it too tight and the grains of sand will also slip through the fingers just the same. Instead, one has to hold the law just enough, just right, by undergoing drudgery in mastering its concepts.

On the second endowment, it has been said that “the law is a jealous mistress”. So, a legal career cannot just be a sideline. The study of law requires full and undivided attention. One hooked in legal study cannot be infatuated at the same time with other professions as the law as a mistress is a green-eyed monster. Hell hath no fury like the law as a mistress scorned.

And third and most important, the legal person must be a gentleman or a lady. When Evidence as a subject is taught, students have to be reminded that conducting cross-examination is a job for ladies and gentlemen. Perhaps the mordant, brow-beating, intimidating and shouting style would work for some lawyers but not for the great lawyer. On how to conduct cross-examination, students must recall the Aesop’s fable about the contest of wills between the Sun and the Wind. One day, the Sun and the Wind could not agree on who between them is stronger so they put their respective strengths to the test when they saw a man wearing a jacket. The victor will be the one who could remove the man’s jacket. The Wind went first by blowing gusts of wind stronger and stronger. But as the winds got gustier, the man held on even more dearly to his jacket. Until the Wind finally gave up and it was the Sun’s turn. The Sun, gently and gradually, panned his sun rays on the man. A little bit of sun here and then there. On the man’s forehead started to form beads of sweat until he perspired profusely. Then, on his own volition, the man took off his jacket.

The moral of the story is that one cannot make an adverse witness admit to his lies by emulating the wind, that is, by the shouting and brow-beating style. Instead, one should be like the sun. To be gentle. This should be borne in mind when a lawyer conducts himself/ herself in court as well as in society in general.

Which then leads us to the proper invocation and use of the law. It has been said that the law is malleable and when clasped with an iron-hand, it can be a harsh or even lethal weapon. But when the grip is reined in by humanity, gentleness and compassion, the law can heal and restore the people’s faith in the administration of justice.  Future lawyers who will take up the three parts of the legal profession are harnessed in the law schools. Theirs will be the hand that will hold and rock the scales of justice tomorrow.

If covid-19 serves to teach any lesson at all to those who belong to the legal profession: it must be that if the law must not fall silent in times of war; so, too, must it be humane in the time of a pandemic.

 

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).