Friday, October 20, 2006

Legal Ethics Dilemmas I

Lawyers sometimes face clashes between popular ideas and expectations on the one hand, and the demands and expectations of the legal system on the other hand.

In this series of postings I will try to explore some of those problems.

One such dilemma is the tension between the proper advocacy of law change or interpretation and radical expectations or arguments.

The law is a very conservative profession. The way lawyers think and argue dates back to the middle ages. In his book Law and Revolution legal historian Harold Berman describes how the way lawyers think about legal texts and problems today has its origin in a synthesis of ideas and practices from Christianity, the Germanic folk law, Roman law and the philosophy of Plato and others, in the eleventh century AD. Lawyerly thought is related to Medeival scholastic thought – which might be why it seems foreign to modern laymen. The ways of the law have also been shaped by the norms of 15th to 18th century English common law practice.

The end result of the development of legal thought is that certain radical arguments are acceptable in court and some are not. If your aim as an attorney is winning justice or mercy for your client, rather than being a sounding box for your client’s political position, you do well to make arguments that are within the allowable range. This allowable range does not provide severe limits on what outcome you seek; it merely limits the means by which you will be allowed to get there.

For example, while I believe the Bible is the ultimate authority for truth, I also know the judges in US courts, though many of them believe the same thing, have been taught that the Bible is not admissible authority or polite argument. Until that changes, while I might use the Bible in a literary or artistic way, I do not jeopardize my client’s case by quoting the Bible as authority unless my client wants to go out in a blaze of glory and I want to be sanctioned by the court. That is not to say I do not use the Bible in political and academic arguments – I use it there as much or more than anyone. But I know what the limits of decorum in court are, and I abide by them for practical reasons.

I do not believe it is immoral not to quote the Bible in court. I have many other arguments and authorities that really have their deep roots in the Bible anyway. And quoting the Bible to unwilling ears will not further the influence of the Bible. The main thing is honestly and ethically arguing for justice and/or mercy for the client’s position. But it is also my personal preference not to make arguments that I would not want society to have to live with if I win. This usually involves choosing the right clients and counseling your clients about the potential results of the arguments available. Even most professional criminals do not want legal rules that make things too easy for other professional criminals – they do not want to be robbed or killed any more than honest men (Though many professional criminals do have decided socialist or libertarian tendencies).

Sometimes you have to make an argument on the record for the court of appeal and then let it go. Hammering it till you get thrown out for contempt is not helpful. A good example was the old operation rescue cases from the sit-in days of the eighties. I think Operation Rescue was right that their blocking of abortion clinics was justified by necessity, defense of others and other legal arguments wrongly considered improper. It was not wrong to raise these arguments for the record or to make sure the court understood them. It would be wrong to commit contempt by continuing to raise them in a rude manner after the trial court rejected them. The trial court must follow the law as it understands it. The lawyer can argue for a different understanding with the court of appeal and the politicians if he looses at trial.

There are though some arguments that go too far and are just wrong. Every judge has had a few cases where people – usually non-lawyers, try to make crazy arguments – like the income tax is illegal, or that the court has no jurisdiction because there is a fringe on the flag in the court. People who waste public time and money with such buffoonery should be ashamed.

For another example of the scope of argument involves the Common Law. Some laymen think the Common Law is always right. Though we teach our students about the history of the common law, it is not always appropriate to cote the common law in court. Sometimes statutes supersede the common law. Sometimes the common law was wrong. Just because a rule is old does not make it the right rule even though age is some evidence of reasonableness in rules. To know when to argue for a return to an old rule or a change to the new rule you need skill, judgment, wisdom, and a sound knowledge of legal reasoning and custom. You must learn how judges think and how to influence their thinking properly for good.

Most judges are not so different from you and me. Many are Christians, or at least church going people. Judges are often nice people. Someone has to like a person to get them elected or appointed as a judge. They are usually very bright. And, judges want to do the right thing. They are constrained by what they understand the law to be and how they understand the law to work. And that understanding is shaped at the edges by legal education, scholarship, and traditions. That is why recapturing legal education with a Christian world view is so important. The way to change legal culture is not by making arguments judges cannot accept, it is by changing the culture of acceptable argument through education, writing, politics, media, art, and personal persuasion. Too often Christians want cultural change on the cheep – by just yelling at culture.

Post modernism and radical politics are eroding the customary limits of legal argument in bad ways today. While judges still are afraid to hear the Bible in court, more and more they refuse to dismiss frivolous cases that attack fatty foods, gun sales and manufacturing, and political decisions – even though there is no established law to support such cases. The law has sometimes become a tool for leftist political policies to use to bypass the ballot box and the legislature (this happened because the courts abused their power for good purposes in the past and now have that power to use for less noble social goals today – but that is another story). This is problematic. A legal world in which the good guys are tied up by tradition but those who want to destroy our society and start over can say and allege whatever they want is not a safe legal world.

To sum up, good legal education and lawyers of good character are needed for the legal system to work properly. It is the man or woman of character and proper legal education who will know what to argue when, and who will stay within the bounds of propriety and morality at the same time, while making his or her point, and furthering his or her cause.

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