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Lives of Lawyers RevisitedTransformation and Resilience in the Organizations of Practice
By Michael J. Kelly
The University of Michigan PressCopyright © 2007 University of Michigan
All right reserved.
Chapter OneThe Fishing Expedition
Fishing expedition is a term used by trial lawyers to describe a practice good lawyers are supposed to avoid, namely, throwing out lines of questions when one doesn't know whether the witness will take the bait and if so what the answer is likely to be. A fishing expedition is usually associated with inexperienced, unprepared, or desperate lawyers. It is a risky strategy that is part hope, part prayer-not unlike the aptly named "Hail Mary" pass in football, in which the quarterback throws a long pass to his receiver surrounded by a bevy of defenders hoping that somehow his man will catch it. With fishing expeditions, the risk is that the witness's answers will surface facts damaging to the case of the questioning lawyer, not unlike an interception in football. Often the fishing expedition yields nothing or something more like an old tire or a clutch of weeds that serves to confuse the case. Rarely, very rarely, does it pay off.
One of the best fishing expedition stories I know used to be told with some glee by William MacMillan, a feisty Irish American trial lawyer from Baltimore. MacMillan represented Whitaker Chambers, a defendant in a civil libelsuit filed by Alger Hiss, a highly respected former State Department official and foundation executive who had played an important role in the formation of the United Nations after World War II. In 1948 Chambers accused Hiss of being a member of a Communist Party apparatus that had been infiltrating the U.S. government in the mid-1930s. He made this charge before a congressional committee presided over by a young U.S. congressman named Richard Nixon. Hiss at first denied knowing Chambers but later identified him as someone using a different name to whom he had rented an apartment in Washington, DC. The Hiss-Chambers confrontation before Congress was a national sensation, the event that thrust Richard Nixon into the national limelight and led to his choice as a running mate by Dwight Eisenhower in 1952 and ultimately his election as president of the United States in 1968.
The libel suit was filed on behalf of Hiss by William L. Marbury. Marbury was the quintessential establishment lawyer, one of the giants of the Baltimore bar, a founder of Piper and Marbury (a prominent firm in the city at the time), a member of the five-person Harvard Corporation (the primary governing board of Harvard University), and a member of the executive council of the American Law Institute (a leading national law reform institution). Late in 1948 Marbury and his partner were grilling Chambers in a deposition prior to trial about his allegations concerning Hiss's clandestine activities, firmly convinced that Chambers had fabricated the entire story. It was inconceivable to Marbury that a man like Hiss, a friend, a law clerk to Supreme Court justice Oliver Wendell Holmes Jr., and a distinguished and revered public servant, could have had any sinister connection with a peripatetic journalist and acknowledged communist such as Whitaker Chambers. Finally Marbury asked the ultimate question: could Chambers produce anything in the way of written evidence that would substantiate his story of a connection with Hiss? The deposition was adjourned and resumed about two weeks later when Chambers produced a sheaf of papers, some in Hiss's own hand and some typewritten copies of communications to the State Department from various foreign service officers. The libel suit effectively evaporated that day. The typewritten papers were later confirmed to have come from a typewriter owned by Hiss and ultimately became crucial evidence in one of the most notorious trials of the decade, Hiss's conviction for perjury before a congressional committee. The infamous McCarthy era in U.S. political history soon commenced. MacMillan's gleeful summary of the incident was "Bill Marbury went on a fishing expedition and caught the bottom of the lake."
My fishing expedition began in 1985 when I was offering a course on "the legal profession" at the University of Maryland School of Law. The core of the course was "legal ethics," a field of study built on the presumption that lawyers belong to a special category of moral agent with unique responsibilities. The decision problems or dilemmas that legal ethics is designed to address are affected by profession-specific factual settings and readings and the special obligations lawyers have to clients, courts, and third parties. The subject matter of legal ethics varies widely depending on the choices of the teacher, but typically it covers a range of legal rules, principles, and professional expectations of lawyers. Some are important conventions such as not contacting another party directly if the party is represented by a lawyer. Others involve decision making related to the special relationship a lawyer has with a client. These include decisions that pit commitments to the client (such as keeping confidences) against obligations of the lawyer to conduct himself or herself in the courtroom so as not to lie to or deceive a judge (upholding the integrity of the legal system) and decisions involving commitments to one client that may be inconsistent with obligations to another client (the zealous representation owed to both and the need to avoid such contradictory obligations or "conflicts of interest"). Some critics consider legal ethics to be an oxymoron because ethics or decision making in law sometimes means prioritizing among differing and conflicting obligations in ways that appear to be anomalous or contrary to ordinary moral principles (e.g., favoring one's client to the detriment of public safety or established public policy). Legal ethics is usually a required course for all law students and a special, required segment tested by state bar examiners as a prerequisite for obtaining a license to practice law.
I was uncomfortable with the degree of abstraction that affected the legal ethics course and the standard textbooks available to teachers of the subject. The course suffered more than most law school courses from a want of context. The materials the class considered and discussed were drawn by and large from codes, cases, and rules applicable to all licensed practitioners and from little vignettes constructed around predefined ethical issues. I came to believe that any understanding of "ethical" decision making in law was distorted without some understanding of the conduct and management of different law practices, the incentives various practices deploy, and the structures of practice organizations. While I valued the role of a law school in establishing for students some baseline of the law, rules, processes, and enforcement mechanisms of government and the organized bar relating to lawyer behavior, there was one important constituency that did not seem well served by what I was doing. Law students-even those who undertake summer internships or "clerkships" as legal assistants during the year at law practices-have almost no sense of how law practices work and how fundamental the practice setting is to the quality and character of the work of a lawyer.
I then set out on an expedition, trying to convince law practices to let me learn about them so I could look at legal ethics in the practice settings in which they arise. Ultimately, five practices allowed me to interview their staffs and write about them while many others declined or made it clear that it would not be productive even to ask-a pattern that suggests how unusual these five practices are in terms of their willingness to subject themselves to scrutiny. I was not picking "typical" organizations from which I could derive some general views of the profession, although I did want to look at different kinds of practices to make sure that my work covered a range of perspectives. I went more or less where I could get in.
People in law practices with whom I talked were happy, sometimes even eager, to talk about their practice, their organization, and issues that worried them, but legal ethics was not high on the list, if it made the list at all, of what most concerned and engaged them about their practice. People had strong feelings ranging from pride to deep concerns and even puzzlement about their practices. It dawned on me that I had come across something interesting and that it might be more fruitful to become an observer of law practices than to pursue classroom-based questions about legal ethics in the practice setting. I had stumbled on something different from what I had set out to find. I decided to abandon my original focus and simply describe law practices, to communicate the character, concerns, and thinking of people in the practice about their professional lives.
With this shift in direction, I thought, perhaps I could establish a precedent in legal education for a line of inquiry usable in the classroom akin to the abundant collections of case studies of corporations that contribute richly to the pedagogy of American business schools. But a colleague who had written and taught case studies in a public policy school convinced me that this genre involves writing designed for classroom teaching with particular attention paid to making sure the text yields lessons or insights a teacher seeks to illicit from discussions in a particular course. The Yogi Berra aphorism, apocryphal or not, serves as an appropriate caution in constructing a case study: "You got to be very careful if you don't know where you're going because you might not get there." Since I was on an expedition premised on ignorance about the learning I wanted to convey, I settled on something much more open-ended. In order to help students understand what it is like to be inside these practices and how they operate, I decided my role should be to offer them a kind of vicarious look at how organizations (functioning in different geographic, substantive law, and client arenas) conceive and act out what it means to be a practicing lawyer. Writing the stories of law practices could contribute, I thought, to a more nuanced view of the shaping of professional values.
My method, about which I have much more to say in the afterword of this book, was self-consciously indeterminate. Most of what I write about in this book came from speaking to people in practices one on one and asking them at the outset how they got to the practice; what they liked or found annoying about the place; and what, if anything, was happening in their organization. I was pursuing no hypothesis about the practice of law in general or their organizations in particular other than to corroborate and get reactions to what other people in their practices had told me. This is an inexact method of understanding a law practice except to the extent that the accumulation of different perspectives begins to resolve itself in some degree of understanding of who these people are and how they conduct themselves as a group. The epigraph from George Orwell included in the grouping that opens this book reflects my own suspicion that partisanship (the deployment of which I try to describe in more detail in the afterword), mistakes, and distortions are almost inevitably a function of such an informal method. The corners of events to which I had access were limited by the willingness of people to raise them, and almost everything I learned was a function of people's memory. Much as a historian faced with a range of evidence tries to arrive at a convincing account of events or social conditions, I felt that multiple perspectives of different people helped me to understand, discount, or take seriously any spin I was getting. The effort I made to discipline my own memory by using written notes verified by the people with whom I spoke is also described in some detail in the afterword.
Instinctively, not by dint of any careful choice of genre, I fashioned what I had learned about a given practice in terms of a narrative (I was trained as a historian before becoming a lawyer). I conceived of my account as an effort to achieve what Hannah Arendt calls understanding the facts by constructing a narrative-not unlike an organizational biography or history that starts with the origins of the practice and brings the story up to the late 1980s. I came to think of this method as akin to writing about distinct societies or villages, almost a form of social anthropology in the sense described by Karl Llewellyn, an academic who coauthored an extremely influential book on legal anthropology, The Cheyenne Way. Llewellyn believed that "most instructive analogues to primitive cultures can be found among the infinite subgroupings of a modern society, once they are viewed as divergent semi-unities rather than as undiscriminated fungible bricks in 'a' whole."
One advantage of describing practices in terms of the story of an organization is that the writing requires integration of the elements of the practice; seeing the practice whole; or, as the epigraph from Stuart Hampshire phrases it, making use of imagination and intellect as if they are coequals. This perspective after all, is much closer to how lawyers experience their organizations than how outsiders think about law practices. An insider's experience is, of course, deeply influenced by location inside the practice. The leader has, or should have, vastly more expansive organizational horizons than the new entrant. But all members of an organization have some access to the way its economics functions in relation to the aspirations voiced by its leadership. And lawyers and staff members at every level see the values of the enterprise demonstrated in the way the organization acts, interprets its history, recruits and treats its people, and describes itself. Seeing the law practice organization as a more or less coherent set of interlocking arrangements and understandings means that the people of the village are the subject of the story, and it becomes important to understand how people deal with each other, how problems and conflicts are addressed and resolved, and the character of the place that emerges from the way people describe their work together. The puzzle I found myself attempting to solve was how best to reveal the way people understand the distinctive personality of their organization-much along the lines of the epigraph from Montaigne to the effect that it is not men in isolation but their "constellations" that are unique and unparalleled, a proposition contested by most modern sociology.
The idiosyncratic character of practice organizations may appear to be in irreconcilable tension with the insights of social science generalization unless you apply to organizations a principle once articulated by Reinhold Niebuhr. In a letter of resignation from the Socialist Party in June 1940, Niebuhr explained his deep disagreement with the Socialists' position against American intervention in World War II.
The Socialists have a dogma that this war is a clash of rival imperialisms. Of course they are right. So is a clash between myself and gangster a clash of rival egotisms, and there is a perspective from which not much difference may be perceived between these egotisms. But from another perspective there is an important difference. "There is not much difference between people," said a farmer to William James, "but what difference there is, is very important." That is a truth which the Socialists have not yet learned. They are right in insisting that the civilization which we are called upon to defend is full of capitalist and imperialist injustice, but it is still a civilization.
To paraphrase William James's farmer friend, there is not much difference between law practice organizations, but what difference there is is very important. I came to see these stories of different law practices as yielding a more granular, intelligible, and discerning sense of difference-the range of ways practitioners were absorbing, addressing, and integrating larger economic, occupational, and ideological forces into the particular design and character of their practices. The stories, I thought, could be an antidote or corrective to the penchant of lawyers, particularly those in legal education, to pontificate about the profession in highly general terms. I wanted to create a supplemental source of understanding available to lawyers, law students, people considering law as a career, and social scientists, as well as other students of professions who seek to understand contemporary law practice.
Excerpted from Lives of Lawyers Revisited by Michael J. Kelly Copyright © 2007 by University of Michigan . Excerpted by permission.
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