The Lottery Realization

-- -- ScottThurman - 18 Apr 2009 - 18 Apr 2009

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.