Jumpstart Outline: Ideas to Help You Make a Plan to Teach “Public Citizen” Lawyering in Any Law School Class

Best Practices for Legal Education and Building on Best Practices urge legal educators to help students develop their professional identities. One aspect of a lawyer’s professional identity is performing the role of “public citizen.” The Preamble of the professional conduct rules in most jurisdictions explains that lawyers are “public citizen having special responsibility for the quality of justice.”

We can help students begin to understand what it means to be a “public citizen” if we address the issue in concrete ways across the curriculum. The following outline provides some ideas for integrating public citizen lawyering into your course.  This is a long list, but there should be an idea or two that will work for your course, whatever its focus.

Use (or Adapt) Existing Course Materials, Exercises, and Activities to Make Explicit Connections Between the Course and the Lawyer’s Work as a Public Citizen

  • Find the Public Citizen Lawyers in Your Current Textbook. Are there lawyers in your textbook that are fulfilling the public citizen role? Discuss them when you see them.
  • Use Course Materials to Help Students Identify and Discuss Injustice. Help students become justice-seeking lawyers by helping them identify injustice. In the chapter Social Justice Across the Curriculum (in Building on Best Practices), Susan Bryant identifies seven questions that can be used in any class to help students explore injustice.
  • Discuss Needs for Law Reform in the Subject Area of the Course. When you encounter areas of needed law reform in course material, discuss how lawyers can play a part in making that change.
  • Use Writing Assignments to Give Students Experience Advocating for Law Reform. For writing assignments that require students to recommend or draft proposed changes to the law, make the explicit connection that this one way that lawyers fulfill the public citizen role: they advocate for improvement in the law. Provide them avenues to publish, discuss, and otherwise publicize their work.
  • Lawyer Speakers Should Be Asked to Discuss How they Serve. If you ordinarily invite lawyers to class to talk about course related topics, prompt them to talk about the things they do to serve the public and the legal profession.
  • Integrate Social Justice Issues Into a Course Exercise. Is there an exercise you currently use to develop knowledge or a skill in which you can introduce an issue of social justice? For thoughts on designing and debriefing that exercise, see Susan Bryant’s chapter Social Justice Across the Curriculum in Building on Best Practices: Transforming Legal Education in a Changing World, at pp. 364-66
  • Prompt “Public Citizen” Discussion in Journaling Exercises. Prompt students to reflect upon public citizen issues in their course journals. What are areas where they see a need for law reform? What could they do to address those issues now and in practice? Suggest that students talk to lawyers (with whom they work) about how they serve the public and the profession. Ask the student to reflect on those discussions in their journal.

Create New Activities and Exercises that Integrate Course Material and the Lawyer’s Role as Public Citizen

  • Prompt Students to Create a Professional Development Plan.Particularly in classes where students may have common career goals (such as in an externship or capstone class), prompt students to write about their values, interests, and strengths, and to make a plan for the future, including a plan for service.
  • Integrate Pro Bono or Service Learning Into the Class. Find an opportunity for the class to represent a client or clients or serve a community organization or population that is connected to the subject matter of the class.
  • Create a Law Reform Activity for the Class. Engage in action as a class to reform the law in an area of need connected to course material. For suggestions see Mae Quinn’s article Teaching Public Citizen Lawyering: From Aspiration to Inspiration, 8 Seattle J. for Soc. Just. 661 (2010).
  • Require Students to Interview a Lawyer. The interview should cover course-related material as well as the lawyer’s service to the poor, the public, and the profession.
  • Organize a Book Club. Identify a non-fiction law-related book with a connection to your course material and that provides a springboard for discussing the lawyer as public citizen. A great book about pro bono service and its impact on both client and lawyer is William H Colby’s Long Goodbye, The Deaths of Nancy Cruzan. A book that prompts lawyers to think about the ingredients of a happy life – including pro bono work and “serving a larger social purpose”– is Nancy Levit and Douglas Linder’s book The Happy Lawyer: Making a Good Life in the Law.

Share Information about Yourself as a Public Citizen

  • Be Inspiring. Tell an inspiring story about what another lawyer’s service meant to you or about what your service may have meant to someone else – and how that made you feel.
  • Talk About Yourself as a New Lawyer. Tell stories about your experiences as a new lawyer attempting to fulfill the public citizen role. What did you learn from those activities? Did you have mentors that inspired or encouraged you?
  • Note the Times When You Struggled. Share the times in your career when you have struggled with balancing the demands of practice, your personal life, and serving the public. What worked for you and where do you continue to struggle?
  • Incorporate Examples Connected to Course Subject Matter. Weave in examples of what you currently do to serve the public and the profession and explain why you serve.
  • Revise Your Faculty Webpage to Emphasize Your Public Citizen Work. Include your pro bono service activities, service to the profession (committees, CLEs, etc), and board service on your law school profile – not just your C.V.
  • Promote Your Service to the Public and Profession on Social Media. Alert your law school communications person to stories about your service activities so that students and alumni can learn about what you do through law school social media. Also, promote these same things in your own use of social media.

Fulfill the Public Citizen Role with Students Outside of the Classroom (Not Necessarily Connected to a Course)

  • Provide Access to Justice. Participate with students in organized pro bono events or service activities.
  • Improve the Law. Enlist students to help you prepare to testify or do research about a suggested change in the law – and bring the student along when possible.
  • Serve the Profession. Ask students to help you with a CLE – from preparation to attending and presenting with you. Or invite students to participate in a bar committee or bar event with you.
  • Identify a Need and Fill It. Work with student organizations you advise to identify a group with interests related to the organization. Find out their needs and make a plan to partner with them.

 

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Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

Why Don’t People Complain? Implications for Defense Counsel. And Some Practical Ethics Hypos for Students.

 

The presidential election campaign this year has provided several teachable moments for law students and lawyers and this post focuses on one of them.

Unless you have been hibernating for the past few weeks, you know that a number of women have accused Republican candidate Donald J. Trump of sexual misconduct.  Mr. Trump and his supporters have denied the claims, arguing that the fact that the women did not complain at the time of the alleged incidents undermines their credibility.

Rather than focusing on the merits of these particular claims, this post uses dispute resolution literature to describe why people often don’t complain, especially about sexual misconduct and discrimination.  Then it discusses implications for defense counsel and their clients of the lack of complaints by people with potentially valid claims.  And finally it offers some hypothetical situations for law students to consider about how they would act when representing defendants.

Naming, Blaming, and Claiming

The following two classic, companion articles analyze how complaints do or do not occur.  William L. F. Felstiner, Richard L. Abel, & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . . , 15 Law and Society Review 631 (1980-81);  Richard Miller & Austin Sarat, Grievances, Claims and Disputes:  Assessing the Adversary Culture, 15 Law and Society Review 525 (1980-81).

To illustrate the evolution of disputes, consider the case of Lilly Ledbetter v. Goodyear.  Ms. Ledbetter worked for Goodyear from 1979 until she retired in 1998.  Shortly before she retired, she received an anonymous note with the salaries of three men doing the same job as she did but who earned 15% to 40% more than her.  She sued Goodyear and the jury awarded her about $3.3 million, which was later reduced to about $300,000.  In 2007, in a 5-4 decision, the U.S. Supreme Court ruled that she could sue only for actions occurring within the prior 180 days, and that she did not prove that discrimination occurred within that period.  In response, Congress enacted the Lilly Ledbetter Fair Pay Act of 2009, providing that the statute of limitations for presenting an equal-pay lawsuit begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck.

Naming – “Perceiving Injurious Experience” (PIE).  The first step is that potential complainants must perceive that they have suffered an injury.  Until Ms. Ledbetter received the anonymous note, she did not perceive that she had experienced an injury.  After receiving the note, she perceived that she had been injured by receiving lower compensation than similarly situated men.

I picked the Ledbetter case because it dramatically illustrates this first step in the process that can lead people to complain (or not).  Many other situations aren’t so clear.  If someone bumps into you in public, for example, you may feel that your body or dignity has been injured – or you may just write off the experience as a normal part of life.

What is perceived as injurious is subjective and a matter of social definition.  In the Mad Men era, before sexual harassment was legally and socially recognized as wrong, for example, female employees experienced bosses’ sexual conduct as a hazard but not the source of personal injury.

There are individual differences in propensity to perceive things as injurious.  Some people regularly feel victimized by a lot of things that others would simply accept without much thought.

Some, including the courts, might not recognize certain experiences as injuries but people may feel that they were injured nonetheless.

Blaming – Feeling Grievance.  Blaming is the next step in what Felstiner et al. call the “transformation” of PIEs into disputes.  Blaming is when a person believes that someone or some entity is at fault for the person’s perceived injury.  Of course, people don’t always blame someone else for their injuries.  Instead, they may consider an injury as just a fact of life, an act of God, or their own fault.  Sadly, some blameless victims blame themselves for acts that abusers are solely responsible for.  And people sometimes unfairly blame others for things that the others are not responsible for.

In Ms. Ledbetter’s case, once she learned of the disparity in pay, she blamed Goodyear, her employer.  While this may seem like an obvious response these days, we used to justify paying men more than women on the theory that they had to support their families.  Given that mindset, many women accepted that this was just “the way things are” and didn’t particularly blame their employers.

Claiming – Demanding Redress.  Of course, when people blame others for their perceived injuries, they may demand some form of redress.  These demands may take many forms such as payment of money, restoration of the prior status quo, cessation of injurious behavior, and apologies, among others.

Sometimes people make claims even when they don’t believe that they are injured and/or don’t blame others.  For example, people who commit insurance fraud presumably don’t believe that they have been injured but demand payment.  Indeed, some wealthy individuals and business fear (sometimes with good reason) that some people file fraudulent claims against their targets assuming that the claimants can get payments to make them go away.

In Ms. Ledbetter’s case, she demanded payment from Goodyear.  However, people who blame others may make no demands for many reasons.  Some believe that it wouldn’t be worth the effort because they believe that their demands wouldn’t be satisfied or the time and effort required would outweigh the benefit.  Some fear negative consequences such as retaliation or damaged reputations.  For some, the process of pursuing a remedy would keep them stuck in dealing with the problem when they would just prefer to move on with their lives.

Disputing – Pursuing Rejected Demands.  Some people respond to complaints by promptly taking action satisfying the complainants, at least enough for the complainants to stop pursuing their complaints.  Of course, some people reject the complaints in whole or part and the complainants continue to pursue the complaints.  Pursuing unsatisfied complaints is disputing.

In Ms. Ledbetter’s case, Goodyear did not satisfy her demands and she pursued the dispute all the way to the Supreme Court.  Sometimes unsatisfied complainants consult lawyers and/or file lawsuits, but not always.  In addition, complainants may drop complaints for many of the reasons that some people do not make complaints at all.

Empirical Data on Naming, Blaming, and Claiming.  The Miller and Sarat article presents data from the classic Civil Litigation Research Project about patterns of naming, blaming, and claiming in what they call “middle-level” disputes, i.e., those involving claims of at least $1000.  (When the data were collected in 1980, this was the equivalent of almost $3000 in today’s dollars.)  The article uses helpful graphics of pyramids to illustrate the patterns of attrition as some people who blame others do not complain, and some complaints do not turn into disputes, and some complaining disputants do not consult lawyers or file suits.

The following table shows how patterns of attrition vary in different types of problems.  The data refer to the percentages of situations for people who perceive injuries.  It shows the percentages of these situations that lead to complaints, disputes, and use of lawyers and court.

indisputably-133-why-dont-people-complain-table

 

 

The general pattern in the study was that 71.8% of grievances became complaints against others, 44.9% of the grievances were disputed, in 10.3% of the grievances the grievants consulted lawyers, and in only 5.0% of the grievances, the grievants filed lawsuits.

For situations that would be considered torts, there was a higher percentage of situations that turn into claims (85.7% vs. 71.8%) and a much smaller percentage that turned into disputes (20.1% vs. 44.9%).

The pattern in situations involving perceived discrimination was quite different.  There was a lower-than-average incidence of complaints (29.4% vs. 71.8%).  However, almost three quarters of discrimination complaints turned into disputes (21.6 / 29.4) whereas less than a quarter (20.1 / 85.7) of tort complaints were disputed.

What accounts for this difference?  For torts, the insurance system is designed to receive and resolve complaints and there generally isn’t much stigma or risk of retaliation for filing complaints.  For the large number of relatively small complaints, insurance companies and other defendants typically prefer to pay the claims promptly than spend resources disputing them.

People with discrimination grievances may doubt that they will receive satisfaction by making complaints.  Issues of discrimination often are ambiguous and difficult to prove. Filing complaints may invite scrutiny of the grievants’ own behavior.  Indeed, employees often are wary of being branded as “troublemakers” and this may be particularly true for discrimination complaints.  They risk subtle and not-so-subtle forms of retaliation, which could make their situations worse.  So the low rate of complaining should not be surprising.  People who have decided to complain presumably have decided to do so despite the risks just noted and once they have done so, they may be particularly determined to pursue their claims.

The data analyzed by Miller and Sarat is more than 35 years old but I suspect it generally reflects modern reality.  I haven’t looked for recent studies, but if you know of any, please share them in a comment below.

Complaining About Sexual Misconduct

Since the publication of the Access Hollywood tape of Mr. Trump’s comments about his interactions with women, a number of women have come forward publicly to describe what they experienced as sexual misconduct by Mr. Trump.  He has categorically denied all the claims, argued that the women have improper motives, and threatened to sue the complainants.  He has argued that the fact that they did not make any demands on him soon after the alleged incidents casts doubt on the veracity of their claims.  I do not express any opinion here about the merits of the particular claims about and by Mr. Trump.

Instead, let’s consider why people who perceive that they have been injured by sexual misconduct often would not make demands on the people who committed those acts.

The Trump controversies have prompted an outpouring of reaction by women who felt injured but didn’t press any claims as well as by analysts of these phenomena.   Columnist Dahlia Lithwick provided an historical review, which may be particularly useful for younger law students.

Clearly, many women identified with the experiences described by Mr. Trump’s accusers.  Soon after the Hollywood Access tape was released, author Kelly Oxford tweeted, “Women: tweet me your first assaults,” under the hashtag #notokayWithin a few days, 27 million people had responded.  Similarly, the hashtag #Whywomendontreport has also attracted a lot of responses.  Many women never told anyone of their perceived injurious experiences except perhaps some close friends or relatives.

In an article entitled Women Know Why Donald Trump’s Accusers Stayed Silent for So Long, Rachel Sklar wrote, “Women who dare to come forward to report stories of being sexually molested find their stories doubted, their behavior questioned, their credibility impugned.  Did they imagine it?  Do it for the attention?  Were they lying about it (because reporting sexual assault is always the path to riches and respect, right?)  Why didn’t they stop it?  The litany of responses is familiar by now:  You were flirting, weren’t you?  What were you wearing?  My, that was a short skirt.  Wait, were you drinking? Boys will be boys! . . . This is grotesquely magnified when accusations are leveled at famous or powerful men. . . . Not only are women expected to receive and submit, but they are expected to laugh off behavior that is otherwise invasive and threatening, to ‘not make a big deal’ about it.”

Mr. Trump’s attacks on his accusers reflect a general fear about complaining.  Liz Plank wrote that “Trump isn’t just trying to attack these women;  he’s signaling to others who may come forward.  By metaphorically naming and shaming them, and implicitly inviting his followers (who have a history of horrifying harassment) to do the same, he wants to terrify any other women from coming forward too.”  Indeed, Mr. Trump has threatened to sue his accusers.  This reinforces a message to women that it generally is dangerous to complain even when there aren’t explicit threats.

Slate writer Christina Cauterucci wrote, “Female friends and acquaintances, including several Slate colleagues, have told me that Trump has resurfaced deeply buried or forgotten memories of sexual assault, some stretching back to childhood. . . .Trump has also caused some women I know to rethink past sexual violations they’d previously explained away to themselves as misunderstandings or petty instances of ‘boys being boys.’  Trump’s talk and his accusers’ allegations are awakening long-dead zombies in our memories, forcing us to confront assaults we’d never labeled as such.”

The Miller and Sarat data and the recent outpouring of personal testimonies demonstrate the low level of complaining about perceived sexual misconduct and discrimination.

This is a serious problem for many reasons.  It is simply wrong that large classes of people feel injured but are too intimidated to present their claims.  This violates our notions of procedural justice, which are based on the assumption that people have reasonable opportunities to complain and be heard fairly.  Although some of unclaimed grievances may not be valid, presumably a substantial proportion of the grievances have real merit.  Even people with good-faith claims that are not valid are entitled to present them.  The wrongdoers’ pattern of behavior violates our social policy embodied in laws to protect people from sexual assault and discrimination.  Meritorious grievances that are not pursued constitute an undeserved transfer of wealth to wrongdoers from the people they have victimized.  And the low level of enforcement of legal protections effectively encourages people to continue a pattern of wrongful behavior because of the low probability that victims will complain.

These are complex problems that deserve serious efforts for social remedies.  These issues are beyond the scope of this post, however.

Implications for Defendants and Defense Counsel

In our legal system, parties are assumed to advance their own interests, not advance any other party’s interest or social policy.  Under the logic of the adversary system, it is up to would-be plaintiffs to complain if they wish, on the assumption that truth and justice will be produced through the adversary process.

This theory may approximate reality when the parties have roughly equal power and there aren’t serious impediments to use of the system.

The theory doesn’t work so well when there is a serious mismatch of power and social deterrents to use of the dispute resolution system as in the case of many sexual assault and discrimination grievances.

Of course, would-be defendants have no duty to encourage grievants to bring complaints against them.  Indeed, that would seem crazy in what Professor Jonathan Cohen calls The Culture of Legal Denial, 84 Neb. L. Rev. 247 (2005), where the “normal practice within our legal culture is for injurers to deny responsibility for harms they commit.”

Indeed, some defendants and their lawyers regularly use the Bart Simpson defense strategy: “I didn’t do it, nobody saw me do it, there’s no way you can prove anything!”

Defense counsel may take any legally permissible actions to resist charges against their clients.  ABA Model Rule of Professional Conduct 3.1 states:  “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous . . ..”  Rule 4.4(a) states:  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . ..”  Tactics that are not prohibited are permitted.

Mr. Trump frequently has used litigation, as documented by USA Today, and frequently has threatened suit, as he did with the accusers of sexual misconduct and the New York Times for publishing an article about two of the accusers.  The American Bar Association declined to publish a report on Mr. Trump’s litigation history reportedly out of fear he would sue them (though ABA officials say that the report violated its policy of being non-partisan).

According to the Washington Post, “When Donald Trump has needed a legal brawler, he has often turned to Marc Kasowitz, a hard-edged Manhattan attorney whose website cites a description of him as one of the most ‘feared lawyers in the United States.’” The general counsel for one of Mr. Kasowitz’s clients was quoted as saying, “When there’s a tough, call it rough-and-tumble kind of litigation, those are the guys I would go to. . . . They’re not afraid to get their hands dirty.”

Of course, many defendants and their lawyers routinely take tough positions in litigation, which is considered normal in our legal culture.  Should they act any differently in cases involving sexual misconduct or discrimination because of the greater vulnerabilities described above?

As a matter of legal ethics, going easier on such (would-be) plaintiffs would be problematic because of lawyers’ duty of loyalty to their clients.

Yet some lawyers may find it distasteful to aggressively litigate against such vulnerable parties, especially if they believe that their claims are valid.  Rule 1.16(b)(4) states that a lawyer may withdraw from representation if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”  Although withdrawal is possible under these circumstances, probably very few lawyers take this route.

Practical Ethics Hypos

The following are hypothetical questions for law students to consider.  Although they might seem most appropriate in professional responsibility courses, they go beyond technical issues of legal ethics.  Professors might also use them in a range of legal practice courses as well as courses on gender, discrimination, and business operations, among others.

These questions involve businesses in which you, as their lawyer, have strong evidence that they have committed wrongdoing against vulnerable parties.  Although this post has focused on allegations against Mr. Trump, the following questions do not involve him because people have such strong feelings about him that responses may be colored by those feelings.

Instead, consider run-of-the-mill corporate giants or substantial mid-size firms.  Focus primarily on grievances by people who perceive that they have been injured by sexual misconduct or discrimination committed or approved by high-level business leaders.

In a case of alleged serious sexual misconduct that you believe occurred as alleged, which, if any, of the following tactics would you use?

  • Use the Bart Simpson strategy, essentially taking the approach for your client, “He didn’t do it, nobody saw him do it, there’s no way you can prove anything!”
  • Vigorously and visibly investigate the accuser’s past, in part to intimidate her from pursuing her claim.
  • Interview the accuser’s family, friends, and associates about the alleged incident, in part to embarrass the accuser and pressure her to drop the case.
  • Make public statements consistent with your legal position, challenging the accuser’s motives, character, and behavior.
  • Vigorously litigate the case, increasing the accuser’s costs and dragging out the process, in part to pressure her to accept a heavily discounted settlement.
  • Threaten to sue the accuser for defamation or actually do so.
  • Take actions that may violate the ethical rules but that are commonly used in practice and are unlikely to result in professional discipline or malpractice liability.

What other actions might you be willing to take or not in this case?  What principle distinguishes actions that you would or would not take?  How would your responses differ, if at all, if the case involved other issues such as fraud, product liability, health and safety violations that business leaders initiated or at least knew about and failed to stop and that involved plaintiffs with relatively few resources?

Now add the following assumptions to the preceding hypothetical case.  You are a recent law graduate, a year into practice, and you have a job with a law firm that regularly represents large businesses.  The job market is tight and you feel lucky to have your job.  You like your job and hope to become a partner in the firm by demonstrating your abilities and value to the firm and its clients.  You generally are comfortable with the positions your firm takes on behalf of its clients but you feel uncomfortable in this case.  You are afraid of the reaction by senior lawyers in the firm if you express your concerns or suggest withdrawing because the client is a major client for your firm and it adamantly wants to pursue a hard-line strategy to discourage other possible plaintiffs from filing suit.

How do these assumptions change your responses to the preceding questions, if at all?  What can you do to preserve both your professional opportunities and your personal integrity?

Discuss.

 

New Article: “When Interests Converge: An Access-to-Justice Mission for Law Schools”

These are challenging times in law schools.  Law school enrollments remain low and graduate unemployment remains high.  Many claim there are too many lawyers to go around and law schools are just making matters worse by continuing to educate prospective lawyers.  But the problem is not really that there are too many lawyers.  Indeed, roughly 80% of low-income and half of middle-income Americans face their legal problems without a lawyer.  Too many face their legal issues without the benefit of legal representation at a time when too many law school graduates are unemployed or underemployed.  In order to overcome this paradox, I argue in a forthcoming piece in the Georgetown Journal on Poverty Law & Policy,  that law schools should embrace an access-to-justice mission, one that would help focus law school teaching, scholarship, and service on the justice gap and help align the interests of those who want to ensure everyone has access to a lawyer who needs one with those who want law schools to continue the important work of educating the next generation of lawyers.  Below is the abstract to “When Interests Converge: An Access-to-Justice Mission for Law Schools.”  A draft can be downloaded here.  Comments welcome.

In recent years, law schools have faced a crisis brought on by the external forces of technology, automation, and legal process outsourcing that has translated into poor job prospects for their graduates, and, in turn, a diminution in the number of students interested in attending law schools.  Such external phenomena are joined by internal critiques of law schools: that they have failed to educate their students adequately for the practice of law and have adopted dubious strategies without a defining mission, all at a time when the market for legal services seems to be changing, perhaps dramatically. Paradoxically, while graduates face diminished job prospects, there is still a vast justice gap: the inability of millions of Americans to obtain legal assistance when facing a legal problem.  There is thus an interest convergence between those who might want access to a lawyer and the law schools that strive to educate the next generation of lawyers and the ones after that.  This Article uses this interest convergence—and the late Derrick Bell’s “Interest Convergence Theory” as a lens through which to view it—as an opportunity for law schools to retool their missions to confront the access-to-justice crisis facing many Americans.  It argues that law schools should embrace an access-to-justice component to their missions to help increase demand for legal services, re-establish the value of legal assistance to the community, restore the importance of the legal profession in preserving and extending societally important rights and interests, and improve the demand for legal education.

 

. . . because there is no social justice

Yesterday, I reviewed a student reflection that broke my heart a little bit. The student responded to my prompt, which asked her to comment on her summer work experience in the context of advancing social justice, by describing an intractable problem with her indigent client. She described hours upon days of work attempting to resolve an unjustified power shutoff for the client, and she ended her piece by explaining that she would continue to work with this case, this issue, and this client “because there is no social justice.”

My response to the student in part, was as follows:

As I sit here preparing to write a piece about the disintegration of our criminal “justice” system, prompted by yet another set of police homicides of men of color this week, your comment that “there is no social justice” certainly resonates with me. The need for us as lawyers, mentors and teachers to reflect with our students about that harsh reality, and to get up and do our jobs as public interest lawyers again the next day, is sometimes overwhelming. I share your frustration, which is not even the right term. I often feel in working with domestic violence victims in my clinic as if we are just rearranging deck chairs on the Titanic. The fact that we do not stop, though, is what keeps the ship of justice afloat. Battered, barely making it, but afloat. I fear it is at greater risk now than ever in this nation, though, and advocates like you will be critical to affect change from inside. Please keep doing what you are doing.

I like the sound of that metaphor about a ship of justice. But I’m frankly not sure if it is even apt.  What ship? What justice? As my colleague Leigh Goodmark noted yesterday, “As soon as I saw the news about Dallas this morning, I thought, I can’t. I just can’t face another day of violence and death and destruction.

That’s privilege. I don’t have to face the reality that when my son leaves the house, he might not come back. That my husband–or I– could be pulled over for a broken taillight and shot as we reached for identification. I don’t have to go into the streets to protest and die trying to protect my children from sniper’s bullets. Because I don’t live in black or brown skin, with a threat hanging over me every minute of every day.

That’s why we have to keep looking. Keep talking. Keep posting. Keep letting our friends of color know that we hear them, we see them, we value their lives, and we love them. Keep demanding better from our police, our government, ourselves. Our friends don’t ever get to say, I can’t. We shouldn’t either.”

Our privilege as law professors goes beyond skin color, but make no mistake, it is seeped in elitism.  Today I am using that privilege on this blog to say these words. That is all. It is not enough. It will never be enough. But I won’t stop. I don’t know if there is social justice. But I know there is a movement towards it, and I want to be a part of it.

 

Building on Best Practices now available as eBook

Are you trying to:

  • Develop a meaningful law school mission statement?
  • Understand new accreditation requirements, learning goals, and outcomes assessment?
  •  Expand your experiential offerings?  Decide whether to use modules or courses?  An on-site clinic, an externship, or community partnership?
  •  Teach ALL of your students in the most effective ways, using a full range of teaching methods?
  • Add to your curriculum more of the professional identity, leadership, intercultural, inter-professional and other knowledge, skills, and values sought by 21st century legal employers?
  • Lead thoughtfully in the face of the challenges facing legal education today?

These and other topics are addressed in Building on Best Practices:  Transforming Legal Education in a Changing World,  now available in ebook format from LexisNexis at no charge.

The print version is not yet out.  LEXIS-NEXIS is taking advance orders for $50, plus shipping.  BUT we understand that they will make one copy available to every US legal educator for free upon on request.  Details on this and international availability still to come.

Thanks, and congratulations, to book project sponsor Clinical Legal Education Association (CLEA), the more than fifty legal educators who participated as authors, and the countless others who assisted as readers and in numerous other ways.

And, a huge shout-out to my wonderful and talented co-editors, Lisa Radke Bliss, Carrie Wilkes Kaas, and Antoinette Sedillo Lopez.

Inner Development, Community, Social Justice (Concurrent Session, AALS Conference on Clinical Legal Education)

Last, but not least, in this series highlighting lessons from experts in other disciplines relevant to how to navigate the chaotic “new normal”  in legal education: Thursday’s concurrent session organized by Tennessee’s Paulette Williams:  “A Commitment to Inner Development: Connecting the “New Normal” with Clinics’ Social Justice Mission”.

The session brought  Edward Groody and Timothy Dempsey from the Community Building Institute in Tennessee.  The Institute helps social service and criminal justice organizations become more effective by training participants in community building practices.  Taking an evidence-based approach built on motivational interviewing, trauma-informed care, and pro-social supports, community building is a “highly experiential process that helps participants remove barriers to communication and unlearn unproductive attitudes and behaviors.”

Groody began the session with a detailed overview of a four-stage process for building community:

  • Pseudo-community
  • Chaos
  • Emptying/Letting Go
  • Community

That process adds an important step — emptying/letting go — to Bruce Tuckman’s familiar “forming, storming, norming, performing” model of group formation.  My own interpretation of this additional,  third step is that it provides space for  participants to recognize,  and learn skills to address, the emotional issues that so often get in the way of honest connection with others.

Dempsey then shared powerful stories of how that process helps ex-offenders with post-prison re-entry,  allowing them to move past behavioral responses that may have seemed — and perhaps were — functional in their previous lives, but would block their efforts to move forward.   Or, to put it another way, this step acknowledges that in order to take advantage of education or employment opportunities, people need to let go of fears, resentments or trauma.  This is challenging work that is the foundation of many spiritual traditions, but can help build strong connections with others.

Time constraints prevented Paulette Williams from speaking in detail about how she makes use of this process in her clinical teaching work.  I hope she finds other forums for sharing those experiences and insights.

The insights of this community building process struck me as relevant not only to social justice and clinical legal education work, but also to faculty interactions within our law schools.  From another time and place, I well remember a year when every faculty meeting resulted in controversy, usually about something relatively minor that seemed to be a proxy for other, larger, but unacknowledged issues festering beneath the surface.    I suspect that many faculties are experiencing something similar as they operate  in the  current climate of uncertainty and change, too often getting stuck in the fear those conditions foster.  It’s  difficult for me to imagine applying this model in the typical law school environment.  But successfully moving through the “emptying/letting go” phase, as individuals and a group,  could be oh, so helpful!

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