Doctors and lawyers and priestly ways

(Posted by Laurel Halbany)

The legal system’s often a mystery, and we, its priests, preside over rituals baffling to everyday citizens. (attributed to Henry Miller)

Anyone who tells you that people like filing ‘frivolous lawsuits’ because it’s easy money also probably believes that women have abortions for recreational purposes.

Law school is initially disorienting because you’re having your entire brain rearranged to a different way of thinking; when they’re done with you, though, you can’t imagine having been different. (It’s a bit like “The Colour Out of Space,” where the farmed humans come to prefer the aliens’ strange, ill-tasting food to normal Earth produce.) It’s easy to lose sight of how opaque–and terrifying–the legal system is to people who are not lawyers.

I work in an area of law where my clients are people rather than corporations. As with doctors, people come to us when they need answers, or help, sometimes when they need that help very badly and they’re very frightened. Like doctors, we have a weird language all our own, we may not seem to understand what it’s like to be in their shoes, and we have to hedge everything we say with scary things. “This will probably be just fine, but there’s always a small chance that…”

Doctors have the advantage that, sometimes, they can make their patients better, or whole. In the law, “better, or whole,” means getting money. I can’t arrange for a settlement where my client’s stage-four lung cancer will be taken away, or where he will be awared another four years to see his grandchildren grow up.

When I talk to our clients, I imagine that doctors must play part of the same role we do, as confidants and confessors. Because of that famous attorney-client privilege, people know they can tell us things that will never go beyond the walls of the law firm, even if those things are not “necessary” to their lawsuit. They tell us things they won’t tell their spouses or their children, even though that may not be anything that’s “relevant”. And we listen, and we assure them that we will make things better. Most likely. We’re working hard on it, certainly. But, like doctors, we can’t say for a hundred percent sure that the treatment will work.

Doctors, of course, are fighting against disease and injury. We’re up against other lawyers. I’m not sure who has it worse.

29 Comments on “Doctors and lawyers and priestly ways”

  1. I’m not a lawyer and I’ve never been involved in a lawsuit at all (unless you count the $20 my contact lens company sent me from some class-action thing). I’ve never met anyone who was involved in anything that could be described as a “frivolous” lawsuit, but I keep meeting people whose second cousin’s next door neighbors sued the streetsweeper for a zillion dollars and won because our legal system is so screwed up. Why is this meme so strong? Why does it keep propagating? I’m blaming the “liberal media”. ;-)

  2. When I was a practicing attorney it used to strike me as I walked int he courthouse, that I was one of the few people that was not, by definition, having a bad day just because I was in a courthouse. Most of the people on this side of the bench are there because something was terribly wrong in their lives and they had no idea how to fix it – they were scared. Me, I was there because it was my job to know what was going on.

  3. I would probably agree that there are fewer frivolous lawsuits in asbestos litigation than the average person might think, but the byzentine nature of the legal system doesn’t prevent them, in my experience.

    Employment law is rife with frivolous lawsuits, and since many of those cases settle, it is a profitable business for plaintiffs’ attorneys. You don’t need to understand the Faragher/Ellerth balancing test to know that two thirds of fifteen thousand dollars is a lot better than nothing. Even after taxes.

    Addressing another point – I think lawyers, the half decent ones, anyway – get a much more detailed look at their client’s lives than doctors. I spend far more time talking with my clients than any doctor has with me. Of course, I get paid by the hour, and he gets a flat fee from my HMO, so maybe it’s apples and oranges.

    But as for who has it worse? I like the competitive nature of being a lawyer. I don’t know that doctors see their efforts as a competition with disease/injury (if any of them do, I bet it’s probably the surgeons) to save the patient – so better/worse would really depend on how competitive you are.

    As for whether it is worse to have to face other lawyers or disease and injury? I can’t say I’m a big fan of comparing opposing counsel unfavorably to a disease. Why don’t lawyers defend their profession, rather than buying into the ‘lawyers are evil’ idea? Sure, there are bad lawyers out there, just like there are bad doctors and cops out there. But the majority of cops and doctors are good people who work hard to improve the world. Would opposing counsel be better or worse than influenza if they worked for the public defenders office, or EFF, or the WWF? Why are lawyers so eager to agree that lawyers are evil?

    One really good example is the doctors who endlessly complain about trial lawyers, and the effect on medical malpractice insurance. Recent studies have shown that the cost of defending medmal cases and any verdicts/settlements has risen at 4% a year for the last ten years. Medmal insurance rates have risen at like 15% a year over the same time. Where does the rest of the money go? I assume it goes to make up a shortfall in investment income, but who knows. But insurance companies have sucessfully shifted the blame to the lawyers, and away from themselves. Which is very nice for them, but it contributes to a general public hatred against lawyers.

    When a person who doesn’t happen to have enough savings for 5+ years of litigation costs is the victim of:

    a botched surgery
    negligently misdiagnosed drugs
    sexual harassment/discrimination
    racial discrimination
    retaliation b/c they blew the whistle on company fraud

    to name a few – it is the lawyers who often foot the bill, and fight for what they deserve.

    And on the other hand, when someone files a multimillion dollar frivolous lawsuit against your company, who do you think will get stuck with the cost, you (in the form of lower raises/bonuses) or the owners/shareholders/managers? It’s the defense lawyers who protect the company, and the employees, from these claims.

    So, who do I think has it worse? Lawyers. Because at least doctors don’t go around bashing their own profession. The system isn’t perfect – but until someone comes up with a better idea, we should take pride in our accomplishments, rather than constantly bemoaning the bad apples.

  4. i think comparing doctors and lawyers is an indication of how fucked up our medical system is. lawyers are advocates. they’re not supposed to be impartial, balanced, fair, just, right, righteous, or even moral. they are constrained to act ethically and legally, but beyond that, they are constrained to do everything in their power to win for you. they are paid to be on your side against someone who is your legal opponent, if not your outright enemy. yes, this means that lawyers’ professional actions often look (and are) horrible. nature of the profession.

    doctors, on the other hand, are highly paid consultants assisting their patients in the maintenance of their patients’ health. doctors are not advocates for the patient against the enemy disease. doctors are not supposed to fight disease on behalf of their patients. this is, and has always been, the patient’s job. doctors are supposed to work even when the patient is healthy: maintaining that patient’s health by advising preemptive action, nutrition and exercise. it’s our fucked up healthcare system that won’t pay for preventive medicine that forces doctors to hold the line just short of death or debilitating disease. it’s also this attitude in doctors — that they’re fighting their own fight against disease in which the patient is incidental — that leads to so much malpractice.

    okay, getting off hobby horse now.

  5. “this means that lawyers’ professional actions often look (and are) horrible. nature of the profession.”

    Really – lawyers’ professional actions are often horrible? Wow, but at least it isn’t my fault, because it is the nature of the profession. You at least mention legal ethics, but I guess lawyers’ ethical standards are so low that it is possible to act horrible, yet remain ethical.

    What is it that we do so often, that is so horrible? I can’t imagine…

    Keep in mind, that there are two very different types of law out there, both practiced by lawyers. There’s transactional/corporate law, and litigation (there are others too, but those make up the vast majority). Transactional lawyers, as someone who was interviewing me once told me, build things, create value – they draft agreements, write wills, negotiate etc. They don’t go to court.

    Litigators argue cases in front of a judge or arbitrator, and everything that goes along with that. Or, as my interviewer said, litigators destroy things, tear them apart, and fight over the shreds. My interviewer did transactional work. I decided to litigate after hearing his description (I didn’t get an offer for a job).

    There is no overlap between transactional law and litigation – although some people do both. What is it that transaction lawyers have done, that is so horrible? Used ‘that’ instead of ‘which’? Misplaced a comma? Took to long to negotiate the second amendment to the first restated agreement?

    I’m guessing that you really meant that litigators often do horrible things. So half of the legal profession is just going to be tarred with the same brush, even though their job has nothing in common with the part that (I’m guessing here) really does the horrible things.

    So what is it that we do? If we were to destroy evidence, suborn perjury or personally lie to the judge – we would no longer be permitted to practice law – and there isn’t much of a market for disbarred lawyers out there.

    Did the McDonalds coffee case upset you? My short response to that is that it was the jury who came back with the initial verdict, not the lawyers, and the judgement was almost immediately reduced by the judge, himself a lawyer. Which brings up another group – are all the lawyers serving in the judicary often doing the horrible things you allude to?

    What is it that we do, which is part of the ‘nature of the profession’ that is so horrible? And who is it doing it?

  6. Reverse ordering!

    Tor: you’re confusing ethics and morals, which is awfully easy to do. But Claire’s “horrible” was a moral judgement. Things like, let’s say, painting a particular woman as a slut, because she’s accusing somebody of rape. See, it’s a mean, and immoral thing to do, but it’s not particularly unethical (as far as my non-lawyer-butt knows) it’s just another tool to raise doubt in the minds of the jurors.

    Ethics != Morals. Very important, especially when discussing lawyers.

    Resa: The “frivolous lawsuits” meme is strong for two reasons.

    1) Corporations pay a lot of money to strengthen it. There’s a lot of astroturf (artificial grass-roots) fight against frivolous lawsuits. A lot of bought & paid for letters to the editor.
    2) (though possibly more importantly) frivolous lawsuits are easy to laugh about, especially if you mutilate out the details which make the lawsuit sensible. For instance, the overly hammered upon Coffee-in-the-lap case was actually about punishing McDonalds about their willfully irresponsible behaviors, less so about the woman’s injury.
    There’s a lot of stuff not about frivolous lawsuits in that link which may or may not be interesting to you… but there’s plenty of interesting stuff in there about the frivolous lawsuit meme.

  7. Yes… this is possibly two posts in a row, but I just thought of something else.

    One of the horrible thing that lawyers do is intentional obfuscation. Which is to say, they make it so anybody who doesn’t take some sort of official training as a lawyer will not be able to read any sort of legal document. It’s a good plan from a legal-workers-union perspective… everybody needs laywers for everything. If a contract is written by a lawyer, the other side of the contract needs a lawyer too, to decipher the intentionally impenetrable “legalese”. Decisions and briefs are even more intentionally impenetrable. The system of case reference is almost certainly an intentional barrier to comprehension by the non-professional.

    A friend of mine who went through law-school (and has since then, decided against a legal profession) said this, which I found interesting:

    When a doctor does his job well, the world needs fewer doctors, but every time a lawyer starts working the world needs at least 2 more (1 for opposition and 1 for judge/aribitrator).

  8. litigators: getting murderers and rapists and child molesters acquitted is horrible. and yet it is the job of a defense attorney to do just that. and i wouldn’t want it any other way. i don’t think anyone can deny that it is immoral to assist someone to get away with murder or rape or blackmail or kidnapping or whatever, and yet it is ethical to do so within our legal system. in fact, it is absolutely necessary within our legal system that even the most egregious criminals have their advocates. it is the nature of the profession to do these particular horrible things.

    transactional lawyers might do something like: advise a wealthy woman who is madly in love to sign a prenuptual agreement with her impoverished fiance. i would agree that this is practical, and probably even ethical from the lawyer’s standpoint. but moral? to advise someone preparing to swear a public oath binding her life to another until death they do part, to also prepare for divorce? maybe “horrible” isn’t the word, but “bad” isn’t off the mark.

    or how about the transactional lawyers drawing up contracts to minimize the liability of a large tech corporation for its factory workers’ job-related injuries and illnesses? how about the lawyers who make it possible for those factories to hire primarily “temp” workers so that the companies don’t have to pay benefits? it’s just their job and they have to do it, ethically. but is it right to cheat american workers out of a living wage and benefits by employing legal loopholes?

    come on, seriously, tor. do you really think that lawyers’ bad reputations are an urban legend? there are terrific lawyers out there working for truth, justice and the american way. and there are a lot of not-so-bad lawyers out there working, ethically, for satan.

  9. I wasn’t suggesting that opposing counsel are like an icky disease, just to be clear–maybe I should have said ‘has it harder.’ You can’t reason with cancer.

    Couple of misconceptions up above:

    –Lawyers don’t actually try to write things to make them confusing to laypeople. There has been a ‘plain English’ movement in law for a while; the problem is partly the obfuscated style we’ve inherited from the old Norman and English laws, and partly because words have very specific meaning in the law. Sort of like demon summoning.

    –Lawyers do have to be ethical, which is indeed not the same as moral. We are not allowed to do ‘everything in our power’ to help our clients–there are ethical limits. But you don’t pay your lawyer to say “Yeah, I could help you win, but you don’t want me to be a meanie, do you?” Or to say “If you don’t make these financial arrangements, you will be roadkill in the event of a divorce–but I’m sure your wife loves you and would never hurt you.”

  10. mythago is dead on about the language used in law. Everyday language is very pliable, and changes greatly over time in both use and style (compare the very popular in their era Shakespeare to Dickens to Stephen King). The language in law is designed to be as specific and unambigious as possible so that both knows exactly what they’re working with. Law language is very dense because it’s grown in a way that demands more rigidity than popular language.

    Science has similar needs, and it’s written works have mutated into different rigid form, one really big on passive voice, sort of like this post.

    Still, they’re both clearer than some 20th century poetry.

  11. Urban legend? No – there are plenty of lawyers who do their job badly, either intentionally or unintentionally. And there are even lawyers who break the law in the course of ‘representing’ their clients. But they are a tiny minority of the lawyers who are out there practicing, ethically, morally and legally.

    As for the ‘language of law’ – the plain english movement notwithstanding – you don’t necessarily need a lawyer. I basically write for a living – but I wouldn’t say I’m qualified to do what Scalzi or any of the other professional writers here do. I *could* do it, but they can do it better. If you are entering into any kind of legal agreement, it makes sense to have a lawyer represent you. Not because we use words and phrases that may be confusing – but it is because that is what we do well. We’re (hopefully) good at it. We spot issues that may not be evident to someone who hasn’t read a hundred contracts. Things that aren’t there, and should be. Things that may have (un)intended consequences that may not be obvious. Sure, you can read, and I can write. But it doesn’t mean that I can write (assuming that you are a writer) what you write, as well as you do, nor does it mean that you would see the same things I do, even though we both are reading the same words. You don’t need an architect to build a house (depending on the building codes, of course) but it’s usually a good idea.

    As for lawyers creating more work for each other – as far as transactional lawyers go, if they do their job well, there is no need for a litigator, because the agreement is complete, and unambiguous. If it isn’t – the parties need to go to court to see what the intent of the parties were. Hence the need for litigators. So you could use the same analogy – a perfectly written agreement has no need for a judge or litigators. A badly written one needs a lot of help, just like a botched surgery.

    From my conversations with public defenders – most people charged with serious crimes are guilty. Over 90%. And they go to jail. The PDs I know don’t see their job as helping guilty people go free, or even protecting the innocent, who they rarely see. The police the system, so that cops can’t abuse their powers – i.e. through coerced confessions and illegal searches. They help the accused understand what is a fair plea bargain, and what is excessive. And if a prosecutor charges too much, they can help make sure the sentence is just. They help make pleas for leniency. They very very rarely help the guilty go free, especially in cases of murder or rape.

    In short, it would be immoral to help a murderer go free, but it is highly moral to call to the attention of the judge an illegal search, or forced confession, or extenuating circumstance. A woman who kills her husband is a killer. And yet she is not guilty of murder, if he spent the last 20 years abusing her – even if there was no actual physical threat at the time she killed him – perhaps in his sleep. Did the defense attorney help a murderer go free, or not? Did he/she act morally?

    Prenups – over 50% of marriages end in divorce, and prenups are not valid if both sides are not competently represented. It never occurred to ask my wife for one, but I don’t have a family fortune. If I did, maybe I would have. Nor did I have friends or family perhaps warning me that maybe she was just after my illusory family fortune. Is it romantic to ask for a prenup? Of course not – I can’t even imagine how I would phrase such a request. But just because it isn’t romantic, doesn’t mean it is immoral. To add some detail to your example, what if the marriage only lasted six months – you don’t think it would be ‘bad’ for the impoverished spouse to walk away with half of the assets that the wealthy spouse had spent a lifetime building? In any event, the impoverished spouse would have to be represented as well – to ensure that the wealthy one wasn’t taking advantage – and so that if the marriage lasted 10 years, he wouldn’t walk away a pauper.

    As for the workers – should the company not be allowed to limit its liability? Should they instead elect for maximum liability, to make the workers happy as the company is drowned under a sea of claims (although w/c law doesn’t really work like that)? Maximum liability doesn’t mean very much if the company has to close. As for permatemps – if the employees do the same job as permanent employees (and meet several other factors) the company is required to give the same benefits as they do to the permanent employees. But should every employee get full benefits and a 401(k)? If so, some companies will then have to close, as they will no longer be able to compete. So are better benefits an acceptable trade off for fewer american jobs, as companies increase outsourcing to compensate?

    Should companies pay their employees more? Sure – if it is possible to do so while remaining competitive and providing value to the shareholders (some of whom are retirees who depend on the money to not have to eat government cheese). Companies know that paying more to your employees is how you get the best employees, provide the best service/product and become successful. Costco does exactly that – they pay their employees far more than similar companies – and their success, at least according to Costco’s president, is due partially to those employees. But companies aren’t bottomless pits of money – if business is bad, you can’t get blood from a stone.

    Is it moral to help a company stay within the law so that it will be able to continue to provide jobs to its employees, and value to the shareholders? I think so. Are there corporate excesses out there that hurt employees? Sure. But no lawyer is in the background advising the CEO to buy a $12,000 shower curtain. The question I am asked by clients is not, ‘how do I screw the employees by breaking the law.’ The question I *do* get is – ‘I want to make sure I *am* following the law – help me make sure that my employees get everything they are entitled to – whether it is ADA or FMLA leave, benefits, overtime, wages etc.’

    Is it immoral for me to review their policies and ensure that they are within the law? If the company wants to provide the required amount of FMLA leave to an employee, should I lie and tell them that the person gets more than they are entitled to get?

    Do I have to quit my job and work for a Union in order to be a ‘moral’ labor attorney?

  12. Interesting post Tor. Interesting post and interesting (and valid) defence of the work that lawyers do on behalf of employers.

    My favourite: “Do I have to quit my job and work for a Union in order to be a ‘moral’ labor attorney?”. My answer to that question would have been very different in law school; the answer in law school would have been: of course. The only moral choice for a labour lawyer is to work on the union side of the bar.

    Of course I was much younger then, and a union side labour lawyer wannabee. To put it mildly I was a prat back then; so were most law students. Practicing law for 14 years has gotten me to see that the answers are not as black and white as they seemed to be in law school. I could probably have made many of the same points you did in your post.

    On the point of pre-nups, the only people who shouldn’t have them are the young who have no assetts to speak of. There is really no point to having one and typically when you see pre-nups in those situations its women who end up giving up their future rights for nothing; a friend who practices family law gave me that insight some time ago.

    For others, you probably should set out the expectations, rights and responsibilities through a pre-nup. Is it romantic; no. Is it necessary; yes. Thinking of a pre-nup as planning for a divorce is silly; it is kind of like not making a will or buying life insurance because that would be akin to planning for death. Nobody really wants a marriage to end prematurely; nobody wants to die early either. However both happen, and you should plan for it.

    If I ever get in a relationship of some permenance, I will insist on one. If that is a relationship killer, I will want to know that sooner rather than later.

    The title of the original entry has particular meaning to me personally. I have been practicing law in a legal clinic setting for 14 years; my clients are poor and could not afford representation. Legal aid pays my salary and I give my clients top notch legal representation for free. I get a particular satisfaction doing the work and helping people.

    One of big inspirations in the work I do is an older relative in the priesthood. He gave up a relatively easy job as a parish priest because he did not like working in a wealthy parish that spent its spare money on redecorating. Instead, in his 40’s he went off and did missionary work for about 20 years. I learned that doing things that were easy and lucrative were not necessarily satisfying. His example made it relatively easy to choose the work that I did. I could have made more money doing other kinds of legal work; I do the work that I do because it is satisfying.

    Most people would be surprised to know that I am not all that unusual. There are more me’s in the Bar than you would think.


  13. A couple of observations:

    1) The comments on the post about lawyers are about four times as long as the average comment on the average thread. Too ironic to pass up…

    2) The law isn’t unique in its opaqueness. My job is in the technology field, and I can tell you without hesitation that people who don’t know how computers work are often blown away at my ability to navigate around a machine (and I’m not a UNIX-geek, just a competent Windows user). If you don’t know much about something, then someone who does appears to be speaking a different language. It happens everywhere…

    3) The lawyers I know seem to have this same identity crisis – the constant need to defend what they do, coupled with a certain self-incriminating pride at how wordy/detailed/nitpicky they are because “law school scrambled their brains.” It’s a job, folks. It’s a service that just about everyone needs at some point in his/her life. I’m glad there are lawyers out there, and I’m glad that so many of them are good at it. If that means the occasional lawyer does something against the rules then fine – I hope he/she gets punished, but I’m not going to prejudge the entire population of lawyers based on the highly publicized anecdotes.

  14. Yeah – I’m a little touchy about the whole thing. I used to joke about wearing a ‘black hat’ and being the Devil’s Advocate, but I couldn’t do my job it I thought it was immoral or evil. And it does bother me that people are so comfortable thinking of me/my job as evil. Dammit, when I start being evil, you’ll know.

    Re: #2 – “Any sufficiently advanced technology is indistinguishable from magic.” – Arthur C. Clarke

    Although I would dispute the fact that lawyering is ‘advanced technology.’ It isn’t rocket science, but it isn’t easy either.

    But getting a law firm network to run without occassionally and randomly losing files, usually late at night? Magic.

  15. Okay, sorry I failed to account for how protective you are of the Transactional Lawyer. Him doing his job only requires 1 more lawyer.

  16. To be honest, I have no idea how many transactional lawyers you need. They are strange creatures who know when to use ‘that’ instead of ‘which.’ I really don’t know anything about them.

    But I think you don’t need any lawyers at all. Clearly, you can read and write. And you don’t seem unintelligent. So the next non-standard agreement you are asked to sign, don’t get a lawyer.

    It isn’t in code, or another language. The briefs and agreements I write don’t use any words of greater complexity than I’ve used in these posts. Any words you don’t know, you can look them up (Black’s law dictionary is always good). Or just cross them out, and replace them with what you think they mean/should mean. The other party to the agreement will let you know if you’ve missed something. And any law librarian would probably be glad to help you find whatever research you need.

    Go ahead, teach the lawyers a lesson – cut them out of the loop! I promise you that no one is forcing you to hire one.

  17. I don’t see lawyers as evil (though some are more so than others). I don’t even really hate lawyers – as was pointed out earlier, they are just doing their job.

    The main reason lawyers tend to annoy me is because they always have to be right. They are taught to argue until they’re blue in the face, no matter how tenuous their position may be. Normal people would, at some point, just agree to disagree on the matter and let it go…

  18. tor, i’d respond to your thoughtful post, but it’s too easy to render every point i make relative. one might even argue that it’s your job to do that, although I would NEVER DARE to argue that. i never said that you or lawyers or the profession were evil. i said, at length, that legal ethics and morality are not the same thing and don’t always happily coexist. i think your post makes that very clear. that’s very vague but i think if we leave it vague, we don’t have to argue anymore.

    everyone else: you all missed my point about the prenuptual agreements. my problem with them is not that they’re unromantic (for god’s sake) but that they are IMMORAL. why are they immoral? because they’re about creating a contingency plan for ending a marriage BEFORE you go in to a situation in which you swear an oath, in front of everyone, to remain married to a person for the rest of your life, no matter what happens. first you sign an agreement about what happens to your belongings if you get a divorce, THEN you go and promise never to get a divorce. gross.

    of course, people who write their own vows and don’t use the traditional ceremony probably aren’t contradicting themselves so much.

  19. Well, yeah, since (at least in the US) there is no single set of legally-mandated vows. That aside, I admit I don’t really see the point; if you assume that the divorce laws in your state would be unfair to you, why get married at all? Live together and keep your assets separate.

    Brian, I don’t think of law school as scrambling anyone’s brain, but the idea is certainly to teach you to ‘think like a lawyer.’ Part of that thinking is severing your interpretation of the rules from what you want the end result to be (no, not all of our elected officials fully absorbed this lesson).

  20. Claire – I think we might have different definitions of ‘immoral.’ If I understand your point right, you believe prenup agreements are immoral, because the standard marriage vows state that you promise to be married ‘until death do you part’ – while at the same time, you are making preparations for divorce. I can see why someone would think that was disingenuous, but I personally don’t see it as immoral.

    For example, one instance where prenups are common, if not standard (from what I understand), is where the prospective couple has children from their first marriage(s). Is getting a prenup saying that you don’t take your vow seriously, or are you protecting assets for the benefit of your children (from the first marriage) in case, god forbid, you picked some loser to marry (again).

    The only thing worse, to me, than getting divorced a second time, would be to have to explain to my kids that their inheritance from grandma was lost in the divorce to my second wife. Or money that their mother provided for their care. No matter how sure I was that the second wife was ‘the one’ – I am not going to take that risk.

    That being said – we just may have different ideas as to what is immoral.

  21. claire,

    When taking a vow one can only speak for oneself, and there is always the possibility that the other person may break his/her vow.

    It seems you are saying one should not get married unless one has complete faith that the other person would never, over a period of fifty years or more, break his/her vow.

    That is an awfully high standard for marriage.

    And what if one does have that faith and the other person goes ahead and breaks the vow? Why should the “good guy” be hurt?

    Should the marriage contract stipulate that whoever asks for divorce gets nothing? That opens the door to abusive relationships.

    Here is a true story. My Aunt died leaving three adult children. Her husband, my Uncle remarried and within a year got a divorce. In the divorce settlement much of my Aunt’s property went to the new wife instead of my Uncle. Is that fair? Is that right?

  22. okay, now you’re just taking out your/your family’s divorce woes on me. never said anything against any of this. please re-read my posts carefully and answer your own questions.

  23. Not trying to attack – just understand. In the fully theoretical situation in my last post, and in the RL situation in Tripp’s post, assets that were earmarked for children went to a second spouse after a divorce. Why is it immoral to sign an agreement that hopes for the best, but prepares for the worst?

    I’m not saying that anything you said was ‘against’ anything – just that you seem to feel strongly that prenups are always immoral. I am of the belief that they could be immoral, but are sometimes necessary. I’m trying to figure out why you think they are always immoral…

  24. assets that were earmarked for children went to a second spouse after a divorce

    What do you mean, “earmarked for children”? Were they in a trust fund or UGMA? Were they in a joint account? Or, like most people, did the earmarker just say “Hey, this is for the kids” and leave it at that?

    Is getting a prenup saying that you don’t take your vow seriously, or are you protecting assets for the benefit of your children (from the first marriage) in case, god forbid, you picked some loser to marry (again).

    Or you could just not marry.

  25. Well, one example would be that of a couple who marries (X and Y), has two kids (A and B), and X passes away. The assets then pass to Y, as A and B, the children, are still minors. Assume the estate has a million dollars in assets at that time, primarily earned by X, the deceased spouse. The living spouse, Y, remarries (to Z), and Z has two children from a previous marriage (C and D). Z doesn’t bring any significant assets to the family, just lots of love and affection. The marriage is very happy, until Z requests a divorce.

    Of that million dollars from the first marriage – should A, B, C and D eventually end up with equal shares, or should A and B get a greater share, as the children of the marriage that produced it? What would X have wanted? Assume Z brings a fabulous house to the marriage, instead of nothing. Should A and B eventually inherit that fabulous house, even though they may not have ever lived in it? Or should C and D end up with the house, as that was their childhood home?

    I don’t think that there are any hard and fast answers to those questions – the answers are specific to the people involved, not letters. I know that I’m playing fast and loose with inheritance law, as well as divorce law – but I think the principle is the same. My understanding is that prenups are very commonly used where couples want to ensure that certain assets, i.e. money, a family home, a family business etc. aren’t put at risk by their second marriage.

    Some people feel that marriage should be entered into without any reservations – damn the torpedoes, full speed ahead. Others choose to mitigate their risk by ensuring that certain assets will definately pass to their children, rather than to be put in play by a possible divorce. They’d rather work these issues out while they are in love and care about each other, rather than after their partner got caught in bed with the gardner/best friend/assistant, and all they want to do is hurt the other person as much as possible.

    I’m not trying to advocate prenups in all or even most cases. If I’d sought counsel, it wouldn’t surprise me at all, if 10 out of 10 disinterested attorneys would have recommended that my wife and I get a prenup. We had no interest in one, and that was the right decision for us. But I don’t think it would have been immoral for us to have one, and if my wife had insisted, I would have signed one. Not because she would have been trying to screw me out of anything, but because certain non-fungible assets may eventually pass to her, and she would want them to pass to our children – not to my purely theoretical second wife, or any children I may have with that 22 year old brazilian cheerleader. The same situation applies certain non-fungible assets which may pass to me. I don’t want them to pass to some 22 year old sailor with a great ass, or to his children. I can see why people in our situation may elect to get a prenup, and yet I’m also comfortable with the fact that we don’t have one.

    And yeah, you could just not marry again – that’s an option for some people as well. But for people who fall in love again, despite the death of their spouse or divorce, I think they should have the option of planning what will happen to the assets they bring into their second marriage.

    I don’t know what the objection to prenups are. Does everyone think that the average prenup is entered into by some tycoon with his impressionable young spouse? i.e. the brazilian cheerleader/sailor with a great ass (’cause they are going to get rooked, ROOKED, in the prenup). Because the average prenup, at least in my limited experience, is more likely to be signed by a couple in their fourties, with children from prior marriages, who both have reasons to sign one, and do so willingly and without any acrimony or subterfuge.

  26. I’ve got Claire’s back on this. But let me put it in different words.

    Swearing OATHS when you have any reservations is a morally dangerous manuever. Doing so when you have enough reservations to make PLANS based on those resevations is immoral.

    Prenuptual agreements aren’t required when you decide to spend your life with somebody, because the law still treats you as two different people (wait, this actually isn’t true… thanks to common law marriage) Scratch that.

    To my reckoning… prenuptual agreements aren’t the immoral act, getting married after signing one is.

  27. I think we may have reached the ‘agree to disagree’ stage – but I have one more quick question. Would it be immoral to enter into a prenuptual agreement never intending to get a divorce? But taking into account the possibility that, without your agreement, you spouse may decide to sue for divorce, and be granted a divorce?

    Have *you* broken your oath, when you did everything you could to keep it, and it was your spouse’s actions resulted in divorce and triggered the prenup?

  28. It seems unlikely that I would be marrying somebody who didn’t share my views about the nature of marriage. Much less my views on the importance of truthfulness and the attendant views on the nature of publically sworn oaths.

    For what it’s worth, I’m 27, and haven’t ever been anywhere near remotely close to marrying somebody, so the average human’s mileage is almost certainly different from my own.

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