— Malvolio, in Twelfth Night
In Canadian law, the meaning of merit is subject to different uses at various points in a legal career. Despite its importance to every lawyer’s well-being, few come to grips with how merit shapes professional interactions.
Today, merit is what unemployed law grads talk about when they refer to students whom they outperformed scholastically but who have secured employment in prestigious law firms. Merit, to them, means a list of accomplishments, the kind that helicopter parents bring to their children’s job interviews. Law firms view merit as a combination of measurable and intangible factors, the latter thrown into a hopper labeled “fit.” But herein rests the nature of the ambiguity: both views of merit exist, and neither is more valid than the other.
Earned or entitled?
The ambiguity in merit originates in the word’s ancestry in Middle English, Old French, and Latin. Each incarnation of merit can either mean “earned” or “entitled.” Historically, the word could be used to promote a soldier who has served honorably in battle, or to confer economic benefits to members of the same blood lineage.
Followers of modern meritocracy, both right and left, embrace concepts of power and wealth based on ability and work. But they express this meaning of merit in opposition to the previous hereditary meaning based on land and birth. “Worthy” was once the preferred word in Middle English, and it was a combination of money and virtue. It referred to status in the landed gentry or the church, and never used to describe common folk. Modern meritocrats have excluded aristocracy because its model of succession is based too much on entitlement and not enough on earned merit.
For the French, the last etymological custodians of the word merit before its use in English, the word continues to invoke social volatility. In her 2009 single, Bien mérité, French pop star Clarika caused a stir among listeners of all political stripes by sarcastically referring to the “little plastic card” that entitles her to state benefits, just because she was born in France: “Ah ouais, je l’ai bien méritée.” In the context of fierce public debate over their government’s treatment of undocumented immigrants (sans papiers), her play on the ambiguity of the verb mériter touched a real nerve.
Even in secular democracy, your birthright does divide you from those who have none, similar to the way aristocrats alienate themselves from commoners. If you don’t feel being born in a particular country gives rise to a sense of merit, why do you cheer for the Olympic team or wear the flag on your backpack? Just try to suppress entitlement from merit. You will fail. Mastery of the merit ambiguity will shape its utility to you as an instrument of personal growth.
“On its merits” is an oft-spouted phrase in legal argument. It denotes the extent to which the facts support a remedy in law. If a lawyer brings a case lacking in merit, it is not necessarily indicative of her abilities. A stellar appellate counsel might overturn only 40 per cent of appealed trial judgments (10- to 20-per-cent better than the average, and probably about as successful as one can ever be). In business law, merit can mean an agreement that is clear and suited to its purpose, without being so precise that sharp edges create frequent breaches.
In litigation or transactional law, one way our profession measures your worth as a lawyer is by the efficacy of your work in achieving your client’s goals. One who regularly arrives at an elegant solution in less time is prized more than the plodder who arrives at the same result only after churning time the client will not pay for. In law, the usual way of measuring this type of merit is by year of call. This rule does not always hold true. We therefore witness the commoditization of legal services as a leveler of the senior lawyer.
Can merit coexist with nepotism?
Not that long ago, the concept of merit in Canadian law meant you became a lawyer through family or family-related business connections. Before the advent of law schools, nepotism was the only way in.
But is nepotism always contrary to hiring on the basis of merit? In firms located in small cities, towns, and villages, new lawyers return to serve along with their parents or other relatives. The family law firm, like the family farm, is a dying industry — but its virtues remain intrinsic to the values of the communities these firms serve. The local pharmacy, dental office, and hardware store can be passed on from generation to generation. Why not the law office?
Merit versus diversity
A reason why diversity has not been universally embraced as a factor in merit is that gender, orientation, skin colour, and ethnicity do not fall into the “earned” part of the merit ambiguity. Witness the use of merit in opposition to the ability to understand English and French whenever there is a vacancy on the Supreme Court of Canada. In that context, the public equates merit to legal ability, as if legal prowess were a skill analogous to the ability to fold a perfect paper airplane. Bilingualism is dismissed as a demographic category without regard to actual linguistic ability beyond a certain level, not as the experiential ability to bridge the two dominant Canadian heritages: a characteristic, not a skill.
Although legal skill does involve logical exactitude and rigour, there is also a significant “I know it when I see it” element, as in Justice Potter Stewart’s famous treatment of obscenity in Jacobellis v. Ohio. Another legal concept which depends on current community standards is the common law’s “reasonable man,” or the distinctly English “man on the Clapham omnibus.” Without this man, much of our law would be lost, without a moral compass.
Clapham in 2013 is no longer the London commuter suburb of the early 1900s symbolizing averageness or “sameness.” As a bustling multicultural hub that includes one of Europe’s more vibrant gay communities, Clapham’s demographics have changed. Eureka, so has our concept of the reasonable man. Without diversity, our ability to interpret law becomes out of step with the nature of social interaction, industry, and conflict. Perhaps you can find the laws of physics in a bell jar — for the laws of men and women you need to get your feet out onto the cobbles and hear that omnibus clattering by.
Integrating merit’s ambiguity into your career
These protean apparitions of merit in the legal employment market show we must all recognize the word is, true to its binary etymology, ambiguous. Sometimes the earned meaning is more important. Sometimes the entitled meaning needs recognition.
If there is a strategy to capitalize on your merit as a lawyer or future lawyer, it is to wrap your mind around the fact that employers, clients, and members of the public value lawyers both for ability to understand and express doctrine, and for human qualities and experience. Your merit as a lawyer cannot all be acquired from textbooks or lecture halls. You have to get out there, and be part of the public you serve.