Law in Contemporary Society
A bad lawyer can achieve results under perfect conditions. A mediocre lawyer can triumph under good conditions. My kind of lawyer can realize justice under the worst conditions - conditions featuring judicial corruption such as the procedural magic Simpson describes in Regina v. Dudley and Stephens.

The manner in which the just court doctors the record to obtain a conviction is an example of naked, unbridled power. Although less visible in "democratic" countries such as ours, this example of corruption occurs frequently in other parts of the world.

The class of lawyer I contemplate must have the capacity to win at the uneven game. But how can one carry the day when the deck is staked against her and in favor of power? It seems that she must have her own bag of tricks/power to counterbalance the corruption. This seems unethical to me. I feel compelled to ascribe a value judgment to the "bag of tricks" concept since I consider myself a functionalist. Things are what they do - right? If so, using strategies/power to trick people seems inherently dishonest – hence – unethical.

Thus, to excel in a corrupt system, one must at least understand corruption. Does it also follow that one must become corrupted?

Disclaimer: Although this post was penned at 2:53 am it was NOT written under conditions of sleep deprivation.

-- CrystalVenning - 13 Apr 2012

Crystal - I don't think that it necessarily follows that one becomes corrupted from understanding the broader functional realities of the system in which one operates and using those advantageously. The distinction you draw between a bad lawyer, a mediocre lawyer, and "your kind" of lawyer, focuses exclusively on the conditions under which they can "achieve results" or "triumph" or "win" or "realize justice." But looking only at the system in which the lawyer operates and what it imposes, rather than at whether the lawyer is working achieve just ends, seems overly-reductionist to me.

Robinson, for example, recognized that the opposing counsel in his case had an inappropriate sexual relationship with a judge and used that knowledge to help his client. Does that make him corrupt, when we know from the factual circumstances of the case that the AUSA had marshaled disproportionate state power against his client because of a personal vendetta? Was Robinson unethical to use what he knew to get more just results, even though that knowledge wasn't based on a superior understanding of the law or anything else that we would necessarily laud in our legal system? I would argue that he wasn't. We know that legal outcomes depend on factors outside the law - on whether a judge is tired or a juror distracted or a District Attorney is particularly attractive. Robinson would be foreclosed from doing justice if he failed to see that reality. He was simply refusing to be, and I quote directly from class, a dumb fuck.

I recognize that this distinction depends on natural definition of justice and a dichotomy in which one side is inherently working for it and the other against, and perhaps all legal altercations aren't so clear. But when that is so, I would argue the parameters we want to to use to measure what is corrupt or what is unethical shift.

--Main.JessicaWirth - 13 Apr 2012

(I think Jessica and I were writing this around the same thing, so apologies for some repeat points.) First, I'll say that I respect your hardline stance against the corruption you identify. But I disagree with your overall suggestion about the necessity of fighting corruption with corruption. The lawyer that you're essentially criticizing to a certain extent is Robinson because he understood corruption. And that's fine. Remember that Robinson used his inside knowledge on the judge to game the system. I don't think, though, that gaming the system is the same thing as your "bag of tricks" concept. The former does seem to be an inherent aspect of practicing criminal law (I think Robinson would agree with that point), but the latter I feel is more related to the idea that lawyers have to "spin" or "twist" words to overcome some unfair advantage. Based on our class discussion a few sessions ago, it's not necessary to resort to these strategies in order to win over a jury or judge. Legal creativity comes from the command and control of our words, not how much we stretch or twist their meaning. I think this was an powerful truth to understand because in practice corruption may not be manifested like in Robinson's drama. We generally won't face a corrupt judge or counterparts. But the other side may have more witnesses, or evidence, or maybe the facts are heavily weighed in their favor. In these more common scenarios, actors who play lawyers in drama may use a bag of tricks. Yet we use legal creativity -- and as I have explained those two things are not one in the same. But I concede the fact that it appears practicing criminal law is a different animal. And your complete adversion to strategies that would even the scale more -- like the one Robinson use -- perhaps just means criminal law isn't your calling.

--Main.LizzieGomez - 13 Apr 2012


Webs Webs

r4 - 22 Jan 2013 - 20:05:43 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM