The Legal Ethicist: The Balance
by Ruchi Kapoor
And so it has been since the turn of the century and the advent of modern legal education: going to law school means that you must begin to think like a lawyer and, therefore, you must stop thinking like a mere ordinary lay person. This schism always becomes readily apparent when a large news outlet discovers that they have some dead air time to fill, and so begins to follow the ‘drama’ inherent in any criminal case in the country. Guilty? Not guilty? $2 billion verdict? Patent invalidated? (well, perhaps a little less of the last one.) As the case becomes more "newsworthy," the media scrambles to make more news out of it—more op-eds appear, the defendant mysteriously has a past that is dug up and plastered on the front of one of those magazines that we all ONLY read at the supermarket checkout, we suddenly get a Steve Jobs biography published, etc.
This is a familiar cycle for all attorneys. Most simply ignore it. The media is the media, we think, and so journalists will always need something to fill space—why not report the conflicts that are being waged in court? Some attorneys are moving to capitalize on the so-called court of public opinion by learning the art of PR manipulation to gain some ground for a client. Some write the op-eds so that they can drum up more business for themselves. Some are genuinely interested in the case and want to make sure that the public is not misinformed on the current state of the law. (Nina Totenberg, I’m looking at you.)
In any case, it is widely accepted that the court of public opinion hinges entirely on public emotion—that dangerous beast. (Lions and tigers and public emotion! Oh my!) So dangerous, in fact, that it was beaten out of us by our own Professor Kingsfields in 1L. Lawyers don’t indulge in nonsense like ‘emotion’ and ‘justice.’ We live instead in the world of make-believe scientific reasoning. That is a far better place from which to run society. It’s safer. And less risky than making a bagel.
But the more that I read and shake my head at the disconnect between what has happened in a court of law versus what the public makes of what happened, the more I am convinced that our law school bred cynicism regarding emotion violates the basic precepts of our current system of legal ethics. Inherent in any client’s case—especially in a case that requires legal advice—there is always a core nugget of emotion driving the conflict. We aren’t therapists (although, if you have to tell your client to stop crying in your office, you probably feel like one), and it isn’t our job to validate or even identify the emotion. We are advocates! So our job is to tell you what your current legal options are.
Often, however, it seems odd and unnatural to separate the conflict from the emotion—usually, without the emotion there would be no conflict, and without the conflict, this person probably would not be sitting in my office crying. Without the emotion behind it, the conflict could, theoretically, be handled as a logical interface between two reasonable people who (gasp!) don’t need the help or the advice of a middleman advocate. When the conflict and the emotion behind the conflict are so closely intertwined, it seems rather unnatural that our system of laws works tremendously hard to ignore the emotional half.
Think, for example, about our current system of patents. (Unless you are a patent attorney, I know that you just yawned. But bear with me folks: patents can be interesting!) Our system of idea and invention protection goes all the way back to the Constitution. But the emotion behind most patent litigation can probably be summed up like this: Hey! That guy stole my idea! Pretending that the lawsuit is really about what the letter "a" means in the context of that particular sentence in a patent application (true story) removes the larger emotional context from the conflict—especially—when the emotional context is removed from consideration by a judge. Such an approach becomes a disservice to a client, because it gives a judge the law (that he or she presumably already know!) without facts on which to render a competent decision. Decidedly the opposite of zealous advocacy.
Now, before you all come knock on my door with pitchforks in the middle of the night, let me be clear here: I am not telling you to come to court and try to convince a trial court or a jury that the fact that your client cries a lot is evidence; but it is important to remember that a client is a person—even a corporate client, according to Justice Scalia. And people have contexts. Emotional contexts, which are not as separate from their legal context as we would have ourselves believe. It would serve us well to strike a balance in our advocacy between the emotional and the legal, even if that would contradict everything lawyers are supposed to think about. D
Ruchi Kapoor is an appellate attorney at heart who is currently clerking for the Denver Juvenile Court. "The Legal Ethicist" is a chronicle of her thoughts on legal misadventures. To read more about her personal misadventures, check out her blog at roopakihcur.wordpress.com.