The Critical Lawyers' Handbook Volume 1
3: Critical Legal Practice
politics of law practice is both a critique and the subject of a course
taught at New College of Law in San Francisco. The critique is derived from
the view that legal culture encompasses different areas of struggle, ranging
from the internal structure of the office all the way to legal arguments
raised in a brief before the Supreme Court (see Kennedy in this book, Watkinson
and John Fitzpatrick below in this chapter). In each area political choices
are made, that is, choices which demystify images and build power, or which
increase alienation and powerlessness. Even decisions such as the physical
location of a law office have an impact on clients, peers and the public.
To pretend such choices are private and have no political consequences is
to reinforce the existing legal system and its dominant culture.
Unfortunately, the 1980s was a decade of spiralling business costs, political fragmentation and preoccupation with material desires. The legal system in the United States was marked by the entrenchment of conservative courts and the staffing of government agencies by Reagan appointees. The result was an unconscious retreat by progressive attorneys. This retreat was marked by workplace elitism, personal caution and legal cynicism. Legal cynicism, like political cynicism, exaggerates the strength of the state and underestimates the potential of the people. It rationalises the failure to include clients in the decision-making process, the failure to use one's practice to build power among indigenous communities, and the failure to break away from practising in traditional forms.
Two examples may help to illustrate this analysis. The first example is a simple one, revolving around money and drugs. The epidemic of rock-cocaine use ('crack') has infected every criminal law practice. Most criminal lawyers, due to economic considerations, are flow representing crack dealers. The more successful lawyers have represented the more successful dealers. Many progressive trial lawyers are spending an inordinate amount of energy and time defending major cocaine smugglers and dealers while crack is ripping apart the fabric of minority communities. Ironically, some lawyers have thus not only maintained their standard of living, but have improved it.
justification for their drug caseloads is that they are defending civil
liberties against a government 'war on drugs' which is allowing the state
to make serious Inroads on all constitutional rights. This is the traditional
liberal response, and it contains much truth. But it avoids facing the
depth of the destruction wrought by their clients, and it avoids developing
a radical alternative to the present practice of criminal law.
There is also precedent in the area of drug defence. Years ago, when heroin flooded poor communities in San Francisco, the Community Law Collective refused to defend heroin dealers. They volunteered their services to a community anti-drug group, and released a legal worker to spend almost all her time organising against Methadone maintenance programmes. These positions were taken after difficult internal debate and in spite of detrimental economic consequences.
Today, in their general political retreat, left lawyers seem to have lost the will to step outside the financial confines of their offices. Without criticism and self-criticism they have fallen prey to the seduction of the glamorous case which brings notoriety and money. Consequently, there has been almost no discussion of confronting this most crucial problem of present-day criminal practice.
The second example involves the sometimes false dichotomy between winning more rights and building power. Two legal aid lawyers brought a suit on behalf of Mexican-American farm-workers to improve working conditions. The day of the trial, the farm-workers filled a bus and travelled 150 miles from the fruit orchards in which they worked to San Francisco's imposing federal court building. When the liberal judge took the bench and saw the courtroom filled with farm-workers he asked all counsel to come into his spacious chambers. He then proceeded to have discussions in chambers, making it evident that he wanted a settlement. Soon it was clear that the judge was hammering out a settlement favourable to the farm-workers, and that he intended to keep counsel in chambers all day while facilitating that settlement. Understanding what the judge was doing, the two legal aid lawyers made no effort to have the hearing taken back into court. The negotiations dragged on all day, and except for the lunch break, the lawyers had no contact with their farm-worker clients who continued to sit in the majestic, marbled courtroom. At the end of the day a settlement was signed. It was not all that legal aid wanted but, realistically, it was the best they could have got. They could justify having had the proceedings out of the presence of their clients by the winning of rights for those clients.
legal practice should not have been satisfied with only this legal victory.
We must ask what did the parties learn from this conflict pitting the
growers and the state labour agency on one side, against the workers on
the other. On the positive side, the workers saw that
The state learned that the legal aid lawyers are skilled advocates. Most importantly, the state learned that the farm-workers still know their place! The legal aid lawyers proved that they know what is best for their clients. They learned that filling a courtroom with workers has a powerful impact. But they never experienced the exhilarating, though at times frightening, power of liberated clients. They missed out on the experience of merging their knowledge with the wisdom of the farm-worker. They returned to their offices with a legal victory (which was to take other suits to enforce) but without having grown as political lawyers.
Critical legal practice does not advocate losing cases. In this instance, we do not suggest that the lawyers should have refused the session in chambers. We do suggest that the lawyers could have won a favourable settlement without leaving their clients in an alienated subordinate situation. The attorneys had three viable options: 1) to ask the judge that two representatives of the workers be allowed in chambers; 2) if the judge refused, to request ten minute breaks every hour to inform their clients; 3) if the judge refused, to demand that at critical junctures in the negotiations they be allowed to consult with their clients. These options were realistic. The lawyers were sincere, liberal people; why didn't they make any of these requests? It is because lawyers are taught to keep decision-making vested in themselves, not their clients. And because lawyers are so intent on winning rights, they fail to think of ways in which to build power among their clients.
The final example shows the erroneous way in which many progressive lawyers view the law itself. They simply try to use existing rules and precedents to win cases and expand their clients' rights. This approach assumes that law is basically a tool that can be used by both the powerful and the powerless, and that their job is to use it to serve progressive causes.
problem with this approach is that it focuses almost exclusively on the
results of cases while paying little attention to the ideological framework
that judges use to reach those results. Over the last 15 years, writers
associated with the critical legal studies movement have shown the limitations
of this exclusively result-orientated approach. For example, they have
shown the way that the United States labour movement was partially co-opted
by the body of labour law that emerged from it. While workers originally
sought to bring about genuine workplace democracy and worker control over
all aspects of work (a first step towards which was winning the right
to form unions and engage In collective bargaining), the Supreme Court
gradually 'interpreted' the main goal of labour law to be that of assuring
'industrial peace' by creating a labour-management partnership that would
increase workers' wages and provide somewhat safer working conditions.
The implications of this kind of analysis are that progressive lawyers cannot be satisfied with just making good legal arguments that they think will work under existing law. They must also find ways to make sure that their arguments express the vision of social change towards which they are working.
The dynamics of a daily law practice result in lawyers submerging their ideals to economic considerations and pragmatic results. It is a sad fact that office meetings are concerned mainly with management and case flow; there is rarely time to analyse the political consequences of the practice. Even firms doing progressive cases rarely have the energy to measure their actual work against the philosophical priorities upon which they first organised their law practice.
Although progressive lawyers have been successful, winning many cases in court and legitimising public interest legal work, there is a frustration and dissatisfaction among them. There is a malaise, a conscious feeling of lack of fulfilment, a need to be part of something more than the isolated and traditional practice of law.
As teachers at New College of Law we felt there was an opportunity to reach many of these lawyers through a new type of clinical programme. We also felt a responsibility to help our students build a career orientated to effecting social change. Peter Gabel, a founder of the Critical Legal Conference, conceived of a course which we hoped would address these issues. The course is entitled the Politics of Law Practice. In it, Peter and I have tried to merge critical legal theory and actual law practice. It is based on the dialectic of the lawyer's desire for politically meaningful work and the law student's uncynical vision of what the legal system should be.
course deals with the following thematic questions essential to critical
class sessions dissect legal culture. We teach students to observe lawyer-client
relationships, salary and decision making structures in the offices, community-legal
organising, and the limitations legal doctrine seems to put on the lawyers.
The students are taught that in
We also urge the participants to consider such questions as: is a legal response to the client's problem the most productive way to proceed? Are the goals of the client being redefined by the legal process? Is there an empowerment of the client or an inforcement of patterns of authority and mystification?
we urge students and lawyers to develop a vision of their own practice.
At the end of the semester the lawyers come to the class and discuss the
following topic: what are the goals and vision of your law practice and
how did the student placements impact on them? The results of what we
call 'compelled articulation' are fascinating. One attorney joked that
her goal was to get to the office each morning and try to make it through
the day. in fact, this had become the 'goal' of many attorneys who once
considered their practice to be a way to bring about social change. A
legal worker at a once politically active firm said: 'The student placed
in our office asked us to discuss how the cases effect social change.
This blew my mind; we hadn't discussed that for years.' Most of the lawyers
felt the discussions with the students and the final presentation stimulated
them to think about their practice in a politically conscious manner.
For some of them,
class has been taught for three years, and in a small way it has helped
bridge the gap between critical legal theory and law practice. Hopefully,
we can train and encourage students and lawyers to transform the oppressive
legal culture, and to build a practice consistent with the dreams that
brought them to law school.