Back in law school I had a contracts professor who had the ability to turn ordinary language on its head. Day could become night, night become day, duties that seemed clear-cut became contingent. Through his encyclopedic knowledge and comprehension of contract law and the Uniform Commercial Code (UCC), he could craft an argument in favor of whatever interpretation best served his client. Though we never became as adept as he nor as facile with the UCC, by the time a student was done with his class we could jump through the same hoops—we could construct arguments in support of or refuting whatever premises appeared on the final exam, sometimes in a more convincing fashion than in others.
It was a useful skill to develop and a fun way to learn the substance (and the holes) of the UCC. It was a contracts class and so learning contract law and the UCC was the point of the class, as far as my law school was concerned. But on the very last day of class our
professor made it clear that to him, at least, developing these skills and knowledge were the clay from which a larger lesson could be constructed: Because we lawyers have the ability to bend the law to our purpose, we also have to take personal responsibility for the positions we advance. As a lawyer, we’re not just making an argument for a client—we’re choosing to use our ability to make an argument for that client. As a prosecutor or a judge, the law does not lead us inevitably to a certain conclusion, but we are arriving at that conclusion either because we lack creativity or because we have chosen that particular conclusion over another.
It has been over two decades and I still think about my professor’s lesson on occasion. For a while, I thought that my professor overstated things a bit. Sometimes the law really is crystal clear; it simply can’t be bent by the will or skill of a lawyer. Also, there are
good reasons to take positions or represent clients who are on the wrong side of an issue. Ours is an adversary system and that system requires two lawyers with undivided loyalties to put forth their best efforts so that a disinterested judge or jury can suss out the truth, or at least justice. Our clients are imperfect, and there is real value in helping someone who has made a mistake. Further, in my real-world experience, there’s usually some truth on both sides of the “v.” It’s rare that one party is wholly right and another is wholly wrong, and so we owe it to our system to advocate aggressively for clients and conclusions that might not, in our heart of hearts, be our first choice.
These days, the underlying truth of my professor’s message can still serve as a touchstone for me. I now don’t think that he overstated things as much as he was alerting us to the notion that our roles as advocates in an adversary system, or as judges applying the law, would sometimes compel us to stretch beyond our own personal comfort zone. And when that happens, he wanted us to consciously acknowledge that we are making the choice to make that stretch. He wanted us to make sure it was worth it. Perhaps we have good reasons to make that stretch, and perhaps a larger principle makes the hard decision worthwhile, but it is nonetheless a decision that we are making. So yes, we lawyers sometimes take positions on our clients’ behalf regardless of our personal preferences because the clients deserve the best representation we can muster but also, yes, we must own the positions we take on behalf of our clients and those positions’ logical consequences. Our names are on the pleadings. Our personal senses of morality or values are on the line. Through training, experience, and hard work, we’ve developed the ability to influence the interpretation and application of the law. What we choose to do with that ability is up to each of us.
1 Who shall remain nameless because: (1) I don’t want to besmirch his reputation with my own imperfect recitation of what’s to follow; (2) I didn’t ask his permission to mention him here; and (3) if you knew him, you’d know that he’d absolutely hate being acknowledged in any way.