Attorney-Client Courage

On Risk

A Plaintiff's Gamble

Private Pressures

A Public Affair

His First Name was Homer

The Attorneys Bravery as a Derivative

There is always the lurking question of asymmetrical risk-reward for the attorney and for the client in public impact cases. Those who hold law degrees and a license to practice benefit from a robust social safety net. This is likely not the case for plaintiffs who are fighting for the recognition of their basic rights in the courts. Meanwhile, attorneys are doing a job, where a public impact case can be career-defining at best, and a note on a resume at worst. The attorneys work mostly behind the scenes, their names rarely well known to the public, slipping beneath the radar of viewers at home. It would seem, then, that attorneys who work on cases with the intent to pursue justice and progress society forward do face far less risk than the clients they serve. If and when they are exercising courage, it is dependent on the heroic acts of normal people with far more to lose. Recognizing this tension, while uncomfortable, is critical to confront head on, allowing us to maintain perspective as we work on behalf of our clients to bring about a more just society. .

This does what a good first draft has to do: it puts your ideas out where you can see them more clearly and work them into better form. First step is to remove cloudiness from the writing. Every word that isn't doing evident work must go. When all the slack words are gone, each sentence needs to be shortened and its grammar simplified.

At this point, the ideas will have become clearly visible. The absence of an outline in the first draft can then be remedied: Your economical sentences can then be reordered and supplemented to make the outline. In that process, the most important idea will move to the top, where in one or two sentences it can introduce the essay, bring the reader in, make sure she has the strongest possible reason to keep reading. Subsequent paragraphs will flesh out the idea, show how you derived it, and what other ideas can be put in dialogue with it. A conclusion then sums up what you said st the outset, and gives the reader a direction for taking the ideas further on his own. I think most or all of those pieces are in the current draft. Improvement consists in removing all the marble that isn't the statue.

The Source of an Attorney's Courage

-- By AshleyWilson - 14 Mar 2022

It makes sense to me how a person who is also an attorney can then become a person who is risking their life for a cause. We see this quite clearly in Ukraine, where thousands of law students and lawyers have traded in their casebooks for weapons against a bloody invasion by the Russian Federation. President Volodymyr Zelenskyy is using all his skills as a lawyer-turned-comedian-turned-president to rouse his country to defend itself. It also makes sense that lawyers can take on incredible risk as activists, politicians, writers, professors, etc. who use many platforms to effect change in society. But how does a lawyer working in their professional capacity fight for a cause, and what are they risking in the process?

Inherent in the idea of fighting for a cause is that you are facing opposition from the groups and institutions that hold power. Surely, this kind of work can bring with it a plethora of personal and professional blowback from people who have an interest in maintaining the status quo. But as an attorney, you are bringing actions on behalf of a client. Finding the kinds of cases that can shake the foundations of American law and improve conditions for marginalized groups will naturally often have plaintiffs who are more socially vulnerable than a person holding a law degree.

When a plaintiff decides to bring a legal action, it is not a passive activity. There are substantial economic and social costs involved. Even when the attorneys in the case are working pro bono or as part of a legal aid organization, plaintiffs have to endure the externalities of a lawsuit. Lawsuits can take years, and courts can be notoriously fickle in scheduling hearings and other necessary meetings. For clients with little job security or financial capital, the process can threaten their livelihoods. Moreover, cases that gain traction and a following can propel a plaintiff from a determined private citizen to a household name. This effect can be fast-tracked and multiplied in the Internet Age where personal information is just a few clicks away.

But even before all our personal information lived on the web, plaintiff’s names have been etched in history and associated with court decisions, sometimes nearly erasing the bravery of the plaintiff to begin with. An example can be found in Homer Plessy, the plaintiff in Plessy v. Ferguson. While Plessy v. Ferguson is regarded as one of the most damaging decisions the Supreme Court of the United States has ever rendered, paving the way for Jim Crow laws in the post-Reconstruction South, it began with an activist who wanted to challenge a wave of white supremacist laws in Louisiana. Homer Plessy planned and took part of an act of civil disobedience, sitting in a “whites only” train care as a white-passing man of color, where he was eventually wrestled off the car and arrested. He put himself in physical danger, at risk of criminal prosecution, to protect his rights and those of the other people of color living in the South. Not only did he lose his case and watch the South become more segregated throughout his lifetime, but his courageous acts have been subsumed in the historical narrative of his own case. Homer Plessy’s meticulously planned demonstration on the train car is mostly absent from discussions of Plessy, and his name has become associated with the very racial segregation and the subjugation of Black people in the American South that he worked so hard to prevent.

Homer Plessy is, importantly, a bit of an outlier because he had a role in crafting the sequence of events that brought his case before the court, working side by side with attorneys and other activists to craft an action that would directly challenge the 1890 Train Car Separation Act. And while this kind of planned litigation continues to take place, there are also plenty of plaintiffs who are simply egregiously wronged and find the unbelievable courage to bring a case against those who have harmed them. From plaintiffs seeking equal pay, marriage equality, accountability for police brutality, and more, everyday people have decided to risk their privacy, employability, and very identities with the hope of making society more inclusive and equitable, with no guarantee that the court will be on their side.

What does this say of the attorneys who take these cases on? Are they brave? Perhaps. But there is always the lurking question of asymmetrical risk-rewards for the attorney and for the client in public impact cases. Those of us who hold law degrees, particularly from elite and well-resourced institutions, have unbelievably strong social safety nets. This is likely not the case for plaintiffs who are fighting for their basic equal rights in the courts. And while the clients are risking so much, these kinds of cases can be career-defining at best, and a note on a resume at worst. The attorneys are also often working behind the scenes, their names rarely well known to the public, and can distance themselves from these cases after the fact. It would seem, then, that attorneys who work on cases with the intent to pursue justice and progress society forward are facing some risks. But exercising their own courage is dependent on the heroic acts of normal people with far more to lose, who find the fortitude to pursue a legal action after their rights have been violated. Recognizing this tension, while uncomfortable, is critical to confront head on, allowing us to maintain perspective as we work on behalf of our clients to bring about a more just society.

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