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< | Recognizing Chance to Become Better Lawyers | >
> | The Lottery Realization
(A revision of Ella Aiken's Recognizing Chance to Become Better Lawyers. Ella's paper is Revision 2; my draft is Revision 3.) | | | | |
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< | -- By EllaAiken - 27 Feb 2009
[Scott: I'll be posting my revisions in an hour; I'm having trouble getting the force revision function to work.] | >
> | -- -- ScottThurman - 18 Apr 2009 - 18 Apr 2009 | | | | |
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< | Introduction
The idea that we have “won the lottery” through our circumstances of birth has come up, and we have questioned where we go from here. I’d like to explore further how that can and should impact our future legal career and how it can help us be better advocates for our clients.
Acknowledging that we were blessed to be born into the conditions we were—and I think this goes for anyone who is now at Columbia, because even if you were born poor and underprivileged, those are relative classifications—only takes us part of the way. We can realize that we may not have been given all of the opportunities that were open us, by chance or mistake. But we should also realize that, but for a chance in circumstances, we could have made the very same mistakes that our clients made, regardless of how grim.
An obligation in work
Once we realize that we have a rare opportunity in front of us, it becomes incumbent upon us to take our license and do good in the world. The good need not necessarily be working a low paying public interest job. Robinson appeared to be one of the “good guys,” even if he was representing society’s bad guys. What made him good was that he chose his clients (they could not necessarily simply choose him by forking over a small fee) and that he advocated for them. Professor Moglen shared an encounter with us about the lawyer on the Court House steps who had received his fee and seem little bothered that his client would nonetheless be serving a life-term, indeed, he said it would do him some good. While he and Robinson may have both been criminal defense lawyers, Robinson appears to still be one of the good guys, and the other lawyer a bad guy. I am not suggesting that we need to care passionately about the fate of our more-than-likely very guilty clients, but complete apathy is inappropriate—we need to care about their fate, even if we are unable to think that the outcome was necessarily wrong. If we appreciate the chance of our position, then perhaps we can be more open to the situation and needs of our clients.
Understanding & Advocacy
Jessica Lenahan, formerly Jessica Gonzales, spoke at a law school lunch last month. (If you are unfamiliar with her tragedy, find more information here). She asked all of us to remember as we embark into the legal profession that we need clients just as much as clients need lawyers. She expressed frustration at lawyers in the past had not taken the time to explain the progress of her case or its nuances to her, and asked us to remember not only that we need each other, but that we could be each other.
If we take the concept of the lottery to heart, then we must realize that we could easily be the person seeking some form of justice for a life-shattering event. If her lawyers had considered the amount of information and the level of detail we would want had we been born into her life, perhaps they would take more time to go over the details. I realize that we are not psychologists, and that it may seem unnecessary to explain every legal detail to a client, but if we could put ourselves in the position of our clients, we could understand their desire to know all the legal details.
Realizing how mostly chance separates us from our clients would not only be good for our clients, but that it would in turn make us better advocates. I have often heard that a good legal advocate is passionate about their cause. If we understand just how close we may be to our clients’ situations, then we may be able to feel and express more passion in our advocacy.
Between Here and Rikers Island
Maybe we will be able to sympathize with clients like Lenahan, and realize that we could be in their shoes, but it may be harder for us to do this when the client is not the victim but the perpetrator. Yet once again, we must recognize that born under different conditions, we could make similar mistakes as many, though maybe not all, of the population of Rikers. Most of us have probably grown up thinking of inmates as bad-guys, and deserving of their incarceration. This may be true to an extent—I have gone through the Sunday morning visitation line and held no wish that the visit could be held in the world of the free—but this does not mean that, given a different set of circumstances, I could have made mistakes that many others have made, or that inmates could not in another world be lawyers.
Robinson plays with the idea of lawyers and prisoners transforming into each other. He seems to toy play with the fact that the lawyers and prisoners are not that different from each other. Perhaps the realization that not much separates us from them other than circumstance is part of what makes him a good guy, and the lawyer on the courthouse steps a bad guy. We as lawyers must recognize that we may be the last barrier before stepping onto that island. If we recognize the dumb luck of it all, perhaps we will take this role as barrier more seriously, more compassionately, and with the greatest interests of our clients at heart.
In the end, I think that the kind of law that we choose to pursue is less indicative of appreciating our opportunity than the way in which we practice it. Certainly some kind of lawyering may be inherently an offence against such a realization. But beyond that, whether we are criminal defense attorneys, prosecutors, or whether we deal with wills and trusts, understanding how easily we might be in the chair facing us may make us stronger lawyers, better advocates, and good people.
- Your essay assumes for many of its purposes that lawyers have individual clients they can see and talk to. This is, as I have pointed out, already a step away from the modal experience of this law school's alumni, most of whom do not have such clients, because they practice in large aggregations of lawyers that represent large aggregations of capital. If one represents individuals, however, the practice of walking a mile in their shoes, which you recommend, will not always be sufficient. One way to think about the problem might be to consider the differences between empathy and sympathy, and those differences affect the relationship between lawyer and client. That might prove to be a useful route in revision: I think this draft is a step towards the goal, but one which is perhaps most useful if also heavily modified. I think one could leave behind both the elements related to anecdotes of mine or of Lawrence Joseph's and elements that might be called "preachy" by those less sympathetic to the project than I. If you lose both the exhortation and the reliance on others' stories, taking a more analytic approach to the precise nature of the sympathetic and/or empathetic bonds between lawyer and individual client, I think you will have an essay that does justice to both your strength of mind and your capacity for psychological insight.
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> | What should we do with the idea that we have "won the lottery" - that is, that much of our success is a product of the happenstance of where, when, and to whom we were born? Such a realization can and should impact our legal careers; realizing that we have "won the lottery" can help us to understand our clients, to define our professional responsibilities toward others, and to advocate creatively. But we must scrupulously consider how we let this realization affect our relationships with clients; we must be wary of moving too far into sympathy and, essentially, getting in our own way as advocates.
Lottery Winners and the Rest
When we realize that we have won the lottery - we were born with the right genes, into the right environments -, we see our own efforts, maybe our own being, as arbitrary. We live in a society that, purportedly, rewards the individual for his or her hard work, diligence, effort, studiousness. Yet our admission to Columbia Law, presumably one of the brass rings everyone on the carousel is gunning for, was, in one sense, predetermined at our birth. Whatever our levels of wealth or happiness as children, we all were installed with the skills needed to succeed in the highly artificial world of the university admissions office, the white-collar job interview. Though we may have sharpened and refined that original kernel, we did not create it out of whole cloth in ourselves.
Consider, for example, the LSAT. We are all very fast to say that it does not measure natural intelligence. And I agree, in so far as I haven't the foggiest what "natural intelligence" is. But surely some people have a natural aptitude to perform well on the LSAT. Or, perhaps more in line with the majority of our experiences, some people have a natural aptitude to be able to prepare for the LSAT, whereas others take the same classes, spend the same time studying, and simply do not improve. The difference is not one of merit; it's one of luck. (Of course, one of the most conspicuous forms of luck is that our ability to do well on the LSAT is related to law school admissions at all; the LSAT appears to be a test that is related to legal studies only circularly, i.e., because it has been chosen as a law school admissions test).
The lottery realization, at its most dramatic, precipitates a democratic impulse - a sense of commonality, of fraternity. You - my client! - are not so dissimilar from me. We are separated by only a thin membrane of luck; why are our lives so different? Why is someone using the force of the court to compel you to do something? The heart of this sentiment is the unfairness of the lottery, which, for no reason, puts the lawyer on one road, his client on another. The client and the lawyer, like in Robinson's vision of mass metamorphosis, could switch roles. The lottery would not care, so long as the proper proportion was maintained.
The lottery realization might have a more modest effect on a lawyer. But either way, it invites lawyers to take serious their roles as advocates for others. Lawyers need clients; indeed, doctrines like standing require that even impact litigators work their social reforms through real people. The lottery realization can create an important advocacy connection between lawyer and client.
Moving Beyond Sympathy: Using the Lottery Recognition
But what is that connection?
It's not enough to say, "But for circumstances, that wretched person - my client! - could be me." Mere sympathy for our clients will not be enough to move us through the difficult emotional and moral challenges of our careers, because sympathy is inherently selfish. When we sympathize with a client, we place ourselves, imaginatively, in her position. But we do not necessarily need to understand our client, or even really acknowledge her as a person, to sympathize. Sympathy is an imaginative act largely concerned with ourselves. When we sympathize, we determine how we'd feel if we had our client's problems. Our pain is placed at the center of this imaginative act, not our client's. And only if we find that we could not handle that pain, only if we feel sorry for ourselves, can sympathy motivate us.
The lottery realization does push us to think about our commonality with our clients. But for luck, but for social forces, we might have been our clients. Those social forces, however, have made all the difference. We cannot ignore them or overlook them, and instead attempt to advocate based upon pity for our imagined selves.
Instead of sympathy, lawyers should use the lottery realization to employ greater empathy - an analytical, not emotional, imaginative act that would challenge lawyers to understand fully their clients. Empathy would encourage lawyers at first to build upon the lottery realization a sense of commonness with the client - the bridge initially needed to cross the gap between two different (separate) people. But, beyond that, empathy would compel the lawyer to fully, holistically explore the identity and, interconnectedly, the problems of the client. We need to determine as wholly as possible what solutions (the outcome desired at trial and, more grandly, the social reforms) are necessary for our client. By removing our own egos from the situation, we can better determine how to rearrange or to eradicate the mechanisms of society that create lotteries with such stark results. |
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