Lawyers can and probably should use everything to help their client. Perhaps the focus should instead be on what lawyers do, i.e. what social changes we can achieve. -- KeithEdelman - 06 Apr 2009

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One of the recurrent themes of the class seems to be that there isn’t a clear line between purely legal work and the world as it exists. Indeed, purely legal work is inadequate and inert; purely legal work results in the sort of transcendental nonsense Cohen wrote against. At the heart of law and the lifeless legal figurations we spend some time learning in class is “public policy” – an innocuous word that stands for how judges and parties think the world should operate.

Little law – the professional tasks we tackle as lawyers – and language-law – affecting change in society with words – both operate in the same medium: language. To separate the two is impossible. Thus the initial fascination with Joseph’s book: it contains something very close to the real language lawyers speak in. What is most obviously troubling about some of the characters we see depicted in Lawyerland (here I think of the lawyers at the end of “Something Split”) isn’t what they do for a living, of which we learn little, but how their own speech reveals who they are (abusive, callous, obsessed with money) and how we realize that must shape their professional lives, or, alternatively, how their professional lives have shaped who they are, i.e. how they speak.

Especially as our time-commitments to the profession of the law increase, it seems natural to want to transform life into the law and everything else. Thus, the characteristics of law limned in this thread: lawyering is what we do with law in connection to our licenses, lawyering is an activity that is more intimate with society’s intricacies, lawyering is more legitimate, more in the public eye. Some of these statements may be true of little-law. But these separations, I fear, only alienate us from our ultimate powers and responsibilities. Law becomes a very narrowly defined idea, and we begin to ignore multiple opportunities to define ourselves as verbal actors; we limit ourselves to the little law’s reduced vision of change ("splitting hairs"). Our capacity to affect the world through language should not be confined to what the profession of lawyering presents, popularizes, legitimizes.

-- ScottThurman - 31 Mar 2009

-- WilliamKing - 30 Mar 2009

A minor point, returning to Michael's original comment raising the question of what distinguishes lawyers from novelists and journalists: I think when we say a lawyer is someone who makes things happen using words what we have to mean is that a lawyer is someone with a law license who makes things happen using words in some way connected to that license.

For example, if a person with a law license wrote a magazine feature article intending to change public views to be more in line with interests of a client seeking to change the law, would that be lawyering? Sure, I'd say--it's done to represent a client that one's law license allows one to have. If a public relations consultant did it, it wouldn't be lawyering, even though the article may be the same.

I don't think we have to be troubled by the fact that this doesn't make the category of concrete actions that constitute lawyering entirely disjoint from other categories of concrete actions. It's still useful to talk about how having a law license affects what change one can accomplish in what way with words (and this is for the most part what everyone's been talking about).

-- GregJohnson - 29 Mar 2009

The lawyer must, of course, also be persuasive. Also, the journalist can shed light on issues and help the lawyer's cause. But when push comes to shove, it appears that the lawyer can more readily utilize the power of the state.

-- KeithEdelman - 28 Mar 2009

Alternatively, this perception may have less to do with actual power than with the relative visibility of writer/journalist achievements vis-a-vis attorney achievements

Tremendous temporal and monetary constraints, as well as consumer preferences, which prevent journalists from engaging in the comprehensive treatment afforded by attorneys and required for the rectification of the most pressing injustices.

In journalism, stories with the potential to be influential are buried in the back of newspapers or ignored when highlighted

Attorneys are provided with more tools and opportunities to, not merely identify a need for, but realize change

Examples: advocating for a client at the present, pursuing class actions, negotiating settlements, collecting evidence, carefully crafting appeals, applying past experiences to future analogous experiences.

I'm drawing on the interview Jon Stewart had with Jim Cramer about the role CNBC could have had during the recent economic crisis. -- AaronShepard - 24 Mar 2009

The law is compromised by its close proximity to authority and the conservative pressures emanating from it.

When lawyers speak, their legitimacy is based in the idea that they are constrained by the law to be precise, and to have some established principle, precedent, doctrine, (the state, as you rightly say) to back up their claims. That’s why anyone listens to lawyers (when and if they do) at all.

When attempting to effect social change, lawyers must be at their most creative

If social change, as Scott says, “moves over multiple channels,” effective lawyering may be indispensible

Yes, that is what I meant by "precise" - if "precise" may be taken to connote "turgid, hyper-technical, or inaccessible to a lay audience," I was not aware of it and did not intend that meaning.

-- LeslieHannay - 28 Mar 2009

At the same time, Leslie, using simple and concise language is often considered to be mark of an effective attorney from a trial advocacy perspective. Attorneys in trial practice are usually instructed to abandon their formalistic, overly-precise lawyerspeak to better make things happen for their side. I'd imagine lawyers attempting to communicate with the general public would adopt a similar strategy.

-- MolissaFarber - 26 Mar 2009

I am not clear on where the axis of pure creativity comes in – are we talking about addressing the ills of society? Lawyers, especially when attempting to shove the machinery of state an inch or two in the direction of positive change, must be at their most creative. One example that springs to mind is the somewhat recent, successful resurrection of the Alien Tort Claims Act of 1789 (one of our country’s oldest pieces of legislation) to prosecute, in the United States, citizens of other countries for human rights abuses against their own people.

The immediate result of Upton Sinclair’s novel was public outcry, but the important, lasting result was the passage of the Meat Inspection Act and the Pure Food and Drug Act of 1906 (passed by the government with the cooperation of industry, the ruling classes). What was opposed was a behavior: the institutionalized exploitation of the working class. The mechanism for change moved, as you say, “over multiple channels.” Would Sinclair’s contribution have been such a success without its legal consequences? It is important, I think, for us to understand the nature of this tool that we are learning to use, in its limitations as well as its potential, so that we can work effectively with those other worthy occupations to advance our aims.

-- LeslieHannay - 26 Mar 2009

Mike, I think you're very close by saying that lawyers' relationships to "structures of power" define the occupation vis-a-vis writers, journalists, etc. But such a close relationship may not be advantageous. While all language is to some extent a product of the various machines of power, law seems to be to be trapped by its very proximity to authority. Law is the state speaking. Indeed, many legal battles are waged over what exactly a word or a phrase means; the battleground consists of a history of how that word has been formulated by various interests: lobbyists, legislatures, and advocates thinking only of their clients. The language of law is comprised and compromised by these pressures.

When we speak, as Alfian does, of lawyers being “risk averse,” I think we touch upon the essentially conservative nature of language-as-power. Here, then, is the essential paradox of the law – the law directly intersects with people, adjudicates their problems. This intimacy, this raw coercive power, gives law the immediacy and the urgency that Uchechi uses to differentiate law from journalism. But along the axis of pure creativity, law is much more restricted than journalism. Unlike investigative journalism, law is limited in what sort of problems it can handle, and as a threshold issue (i.e. the problems of standing and political question) the law is simply unable to deal with a lot. Yet law is even more restricted – our very ability to frame our clients’ arguments is limited by the parameters of a highly specific language that has been shaped and warped by generations of lawyers and legislators. At the heart of the language of law are the same energies – industry, the government, the ruling classes – that we are opposing. Simply said, lawyers are not as free to use language as others.

Ultimately, I think that effective advocacy has to move over multiple channels, and meditation on what law can or can’t do in relation to journalism risks othering one of the occupations and reducing our own abilities to think creatively and work towards change.

-- ScottThurman - 25 Mar 2009

The comparison between the roles of the lawyer and the journalist was fascinating to me. I think Uchechi touches on a key point, but I would go on to say that I think lawyers are trained to understand the intricacies of society that most people simply do not care about. In general, this relegates lawyers to a place outside the public eye, hence the broader influence that journalists have. However, when specific intricacies cross over into normal life, I think lawyers could have a significant role in explaining the situation to laymen. I think this would provide a more clear picture of the complexities with which we live.

If this came off a bit too obscure, I'm drawing on the interview Jon Stewart had with Jim Cramer about the role CNBC could have had during the recent economic crisis. I think lawyers would be perfect for such a role, and that this could also benefit the public perception of the profession.

-- AaronShepard - 24 Mar 2009

[Note: The post above is not mine.]

Eben mentioned an article in the NYT about medical students who did something very risky and courageous.

I suppose the medical students saw something that was not quite right and felt the need to band together and advocate for change using words.

Eben then said that law students aren't doing anything that risky.

If law students are averse to risk, wouldn't it be reasonable to assume that they would continue to do so when they become lawyers?

-- AlfianKuchit - 13 Mar 2009

The difference I see between the professions is that lawyers have far longer to go before stopping. If a lawyer researches an issue and "presents for publication" to a judge or jury, she is advocating for a client at the moment but also had the past opportunity to pursue a class action, negotiate settlement and collect evidence; similarly, she has the opportunity in the future to craft words carefully in an appeal or while advocating for someone in an analogous situation years down the road. As lawyers, I do think we get the layman prestige and the power. When you think about it, what could be more cool than spending your life taking the next step -- waving the red flag, screaming "hey, look what's going on" and actually having people turn around to listen?

I bring this up because the groundwork for many of the prominent social reforms of the last century seems to have been laid by other kinds of writers -- Rachel Carson and Upton Sinclair, for instance. In the realm of foreign policy, simply by showing people what was really going on, journalists helped turn American public opinion decisively against the Vietnam War. This seems to have impacted Vietnam policy, and foreign policy in general, far more effectively than lawyers ever could have.

Of course, these other kinds of writers write for a popular audience, while lawyers seem to write mainly for other lawyers, so it's understandable that their achievements are more visible to someone like me. Still, I wonder if this prominence corresponds with their greater real power to make change happen. In Arnold's terms, they seem to be able to challenge, or even alter, the popular "myths" that lawyers have to operate within. In any case, I want to know what we can accomplish that the novelists and journalists can't. What do you think?

-- MichaelHolloway - 10 Mar 2009