Practical Moral Philosophy for Lawyers Scene 6: Another Lawyer-Client Conversation  Reading: Stephen Greenleaf, The Ditto List 3-37 (New York: Ballantine Books, 1985) (1) D.T. Jones, for example, says that he mostly listens to clients and that in his divorce practice "a high percentage of women came to him primarily to publicize their predicaments and to be told, emphatically and repeatedly, they weren't crazy to think what they thought and feel what they felt." [7] Jerry Kennedy, the lawyer in George Higgins, Kennedy for the Defense (New York: Ballantine Books, 1981), says of one of his days at the office, "I didn't do anything wrong today, mostly because I didn't do much of anything except hold hands." [84] By holding hands, Kennedy implies he listens to the concerns of clients and lets them bear witness to their story. (i) D.T. Jones claims that the stories his clients tell are as "interchangeable as their gestures" snd that each client has "her own story, her own pet of anguish that accompanied her everywhere, the leash a chain of sorrow." [7, 8] How do you reconcile the apparent contradiction in these two claims? Can you speculate how these opposing and seemingly contradictory understandings of clients and their stories might affect a lawyer's relation with a client? A teacher's relation with a student?   (ii) How is the story you are living out as a law student and in becoming a lawyer interchangeable with the stories of your fellow students? In what way do you assume your personal story to be a unique one? (2)When D.T. Jones talks about his divorce clients he claims to have "loved them all, and wished he could lavish them with riches, introduce them to swains, bathe them in oils, dress them in silks, shelter them from future sadness, all of which would be within the power of the thing he wished he was: Sir Jones. Knight Errant. Brave and Stalwart. Champion of the Miswed." [8] (i) What does this phantasy tell you about Jones?   (ii) How does your assessment of D.T. change when you contrast his phantasy of himself as a lawyer and the way he deals with Mrs. Kunsman and Mareth Stone? The question assumes that D.T.'s conversations with his clients tell us something worth knowing? (3) Mrs. Stone says to her new lawyer, "You take all this personally, don't you?" [34] Contrast her remark with Seymour Wishman's claim that there was "nothing personal" in his humiliation of Mrs. Lewis? (i) What do you think Mrs. Stone means by this statement? Does it mean that Jones is or isn't a good lawyer in Mrs. Stone's eyes?   (ii) Based on Seymour Wishman's claim, later recanted, that there was "nothing personal" in his brutal cross-examination of Mrs. Lewis, and now, Mrs. Stone's perception that D.T. Jones takes the work personally, one might ask: Do we want our work to be personal or not? What is at stake, in moral terms, in making our work personal? (4) Robert Service practices with a thirty-six person firm. D.T. Jones is a solo practitioner. How are these facts about firms and practices of significance to the moral dimension of the work of these lawyers? (5) Mrs. Stone, recently served with divorce papers, seeks the assistance of a lawyer. D.T. questions Mrs. Stone husband's motivations in seeking a divorce. When Mrs. Stone is unable to explain what motivated her husband, D.T. is undeterred. One might assume that a lawyer who routinely handles divorce cases learns, over time, that divorce clients are sometimes less than forthcoming about their situation. You might also learn that a failure to get sufficient background information on what precipitated the divorce makes it more difficult to adequately represent your client. If you follow these assumptions, then D.T.'s decision to "thrust for the rot" [24] makes sense. But is it possible that D.T.'s move may serve other, less lawyerly, needs. Seymour Wishman talks about some of the underlying psychological needs he had identified in his approach to litigation. Are you concerned that D.T.'s stance with Mrs. Stone has gone beyond effective lawyering? Is D.T. pursuing a strategy or is he posturing? D.T. questions Mrs. Stone about actions which might have provoked (or at least explain) her husband's decision to seek a divorce. For example, Mrs. Stone denies she has had an affair. Later, when D.T. asserts she must have had one, she admits that she has. D.T. may have been right about Mrs. Stone but one wonders about such an assumption and whether making it, as a matter of course, would not sooner or later lead to serious mistakes. (i) What does Mrs. Stone's misrepresentation to D.T. and D.T.'s method of obtaining the facts suggest about law office conversations? About the role of truth in the conversations that lawyers have with their clients?   (ii) Jerry Kennedy, the lawyer protagonist in George Higgins, Kennedy for the Defense 14 (1980) says of his clients: "They hold things back, stupidly, when they are talking to their lawyers. . . ." Kennedy claims that it's essential that clients tell him the truth, even though they may have trouble doing it. Is it possible that clients and lawyers are equally confused by the truth and how it plays out in their lives? (6) Mrs. Stone informs D.T. that his question about whether she has a lover, is none of his business. D.T. angrily replies: "Let's get one thing clear right now, Mrs. Stone. If you want me to represent you in this matter then absolutely everything in your life is my business, from your bowel movements to your taste in millinery. If you don't buy that, I suggest you go find some lawyer in a fifty-man firm who makes a quarter of a million a year and thinks that means he knows everything he needs to know about divorce work even though the only one he's ever been involved with is his own." [25] (i) Is D.T. "cooling-out" Mrs. Stone so that she will be a docile (manageable) client or properly "educating" her in the realities of the legal world in which her case will be decided?   (ii) Is D.T. trying to prepare Mrs. Stone for the "reality" of what lies ahead or some version/vision of "reality" associated with D.T.'s character (that is, a "reality" of his own making)?   Jean-Baptiste Clamence, the lawyer in Albert Camus, The Fall 44 (New York: Vintage Books, 1956), remarks, "I am well aware that one can't get along without domineering or being served. Every man needs slaves as he needs fresh air. Commanding is breathing -- you agree with me?" Finally, remember, Seymour Wishman's discovery that he had psychological needs that fueled his ferocious courtroom performances and his humiliation of Mrs. Lewis. Is D.T.'s approach to his client an example of effective lawyering, a peculiar kind of treatment one might find in divorce law practice, or just D.T. Jones's version of what works? (7) One might defend D.T.'s approach (and tactics) with the argument that he acted in Mrs. Stone's best interest; that he was simply attempting to translate a "personal" story into legal terms that would get Mrs. Stone what she wanted and deserved. Isn't this what Mrs. Stone hired D.T. to do? And if D.T. doesn't do it, will he not jeopardize Mrs. Stone's case? We might want to consider how the translation of lay stories to legal stories has a ripple-effect. Consider the following bit of revealing conversation: "How much do you want?" he [D.T. Jones] asked. . . . "What do you mean?" "Come now, Mrs. Stone, I'm sure you know something about the law. You're entitled to half the assets accumulated during marriage, and if there wasn't any money in the beginning all the assets you have are presumptively marital. Unless he inherited a bundle or unless you have money of your own." "She shook her head. "Neither of those." "Did you live together before marriage?" "Why?" "That can increase the marital period and entitle you to more money." She sighed. "We were very proper. Apparently even that was a mistake." She fingered her hair absently. "It's very difficult for me to think of this in terms of money, Mr. Jones. I mean, I know I have right's, and I want to assert them, but it's like putting a price on fifteen years of life. Of love. And I always believed love was priceless." She started to smile at the cliche, then to say something else, then stopped and closed her eyes. "In this jurisdiction love goes for about two hundred bucks a month per year of marriage, Mrs. Stone," D.T. said, loosely calculating an alimony formula employed by at least one judge in the southside division. [26-27] Later in the interview the following dialogue ensued: "After you pick them [the children] up you should go to your bank and take all the money out of all the accounts you can lay your hands on. I mean all. Plus you should empty all the safe deposit boxes and get a new one in a different bank and put the stuff in it. Okay." "But is that fair? I mean . . ." "In this business fair is first, Mrs. Stone. Besides, my guess is you're going to discover your husband has beat you to it and the accounts will be empty. So be prepared." She lowered her head. "It's like preparing for war, isn't it, Mr. Jones?" "That's exactly what it's like, Mrs. Stone. And your husband is already marching through Poland so we've got to get busy." "I didn't think it would be like this, somehow," she said quietly. "Not us." D.T. nodded. "The whole world thinks it's an exception. I felt the same way when I was drafted. It lasted till I got shot." [35] What are the practical, moral, and philosophical implications of this line of conversation? (8) After reading the Divorce Petition served on his new client, D.T. asks Mrs. Stone whether her husband is "serious" in his demand for custody of the children. Is it ethical for a lawyer representing the husband in a divorce action to ask for custody of the children when the lawyer has reason to believe that the husband is using the custody issue as a bargaining ploy? [Custody Blackmail] (9) Consider D.T.'s description of Jerome Fitzgerald, an old law school classmate: Jerome Fitzgerald had been one of the students he most despised in law school, one of those who had always known they wanted to be lawyers and had always known why--money and power and deductible vacations. No cause, no principle, no reformist zeal, just a respectably lucrative job. Less pressure than medicine, more fashionable than real estate or insurance, less risky than wildcatting or drug dealing. D.T. had once overhead a girl ask Jerome to name his favorite novel and movie and symphony. The novel was The Robe; the movie Spartacus; the symphony The Grand Canyon Suite. [12] And yet, D.T. admits his fascination with Fitzgerald. D.T. was in " awe of his ignorance of doubt, of his seamless self-confidence, of his assessment of a scrambled world in such simple forms and rules that he could doubtlessly vote Republican, belong to the ABA, drive a car that cost as much as a house, and, in his racy moments, make snide remarks about divorce lawyers and liberal politicians and people who slept in doorways and ate free food. [12] (i) Are there parallels in DT's description of Jerome Fitzgerald and Judge Barrett, Seymour Wishman's beloved judge described in Confessions of a Criminal Lawyer?   (ii) Our identifications, positive and negative, may have a more central role in our own moral character than we willing to admit. Compare D.T.'s ambivalence toward Jerome Fitzgerald, Seymour Wishman's for Judge Barett, and Robert Service toward Blanders Blakelock. Our identifications can be revealing. Consider Charles Reich's reverence for Hugo Black, the Supreme Court Justice for whom Reich clerked. Reich says of Justice Black: I lived on the ground floor of the Justice's eighteenth-century house in Alexandria. We had breakfast with him in the kitchen, lunch with him in the public cafeteria at the Court, and dinner back home in the elegant old dining room. From early morning until bedtime we talked about the Constitution and the Bill of Rights. I found in Justice Black a person who had a total faith in the fundamental principles of justice. He carried the Constitution in his pocket as if it were the Bible. He was a warm and unpretentious man, and he made us two law clerks his sons for the year. He showed us how to wash dishes "right," but always did most of the dishes himself. He cooked steak country-style on Sunday. He told us not to drink or smoke while pouring himself a drink--because liquor couldn't hurt a man at his age.... He was always trying to tactfully to improve my driving. He made us look up words in the dictionary. Hugo Black was an authentically great man. In a city that lived by display, power, gossip, and publicity, his way of life was simple and old-fashioned and wholly without artificial trappings. Each deputy assistant secretary of defense might have a chauffeur and a limousine; Justice Black drove his own old green Plymouth. He loved peace and quiet and a few choice friends. He did his own studying and thinking, and wrote his own opinions, sending to the Court library or the Library of Congress for books as he required them. If a phrase in the Constitution needed to be understood in the context of history or philosophy, he thought every issue through from the beginning. In a world that was "realistic" about power, Justice Black was passionate about justice for each individual, no matter how inconsequential the person might seem to the world. He was utterly uncorrupted and incorruptible. He was powerful because he possessed the power of love--love of the Constitution, of justice, of democracy, of the people, of his family and friends, of his country. While other judges and lawyers often thought primarily about abstract rules and regulations, the first thing Justice Black saw in a case was the human being involved--the human factors, a particular man or woman's hopes and suffering; this became the focus of all his compassion and indignation. [Charles Reich, The Sorcerer of Bolinas Reef 22-23 (New York: Bantam, 1977)] (10) D.T. Jones leaves the courtroom dejected after being chastised by the judge for putting the wrong divorce client on the stand. D.T.'s reflection on the event goes something like this: "Another day, another dollar, another slap of shame." He is consoled by the fact "that no one except his ex-wife had ever called him anything he had not already called himself." [16] It seems that D.T.'s ex-wife has reminded her husband of things he had much rather forget. (Recall Blanders Blakelock's advice to his young associate, Robert Service, to go home and talk to his wife about his proposed hardball tactics in the Atlantic Rylands case. In fictional portrayals of men lawyers, it is often their wife who sometimes represents moral concerns.) (11) D.T. admits that his life as a lawyer has not turned out the way he had imagined it: Had he known anyone to whom he could have been truthful about such things, he would have confessed during his freshman year [in law school] that he believed himself a fermenting mix of Perry Mason and Clarence Darrow, a nascent champion of lost causes, reviver of trampled liberties, master of the sine qua non of the trial lawyer's art--convincing anyone of anything. But after he had gone into practice on his own--against the advice of everyone he knew and a lot of those he didn't--the clients who came his way all possessed totally prosaic difficulties, dilemmas that, while they involved the basic passions and requirements of life and therefore invoked D.T.'s empathy and an invariably unprofitable expenditure of his time, did not attract the kind of publicity or renown that would bring more glorious causes to his door. Mildly injurious dog bites, trivial slips and falls, evictions, credit hassles, change of names--the clients trooped in and out of his office like files of captured soldiers, asking little, getting less. His silver tongue tarnished by life's relentless ambiguity, the major Perry Masonish mystery in his practice soon came to be whether he would be able to pay Confederated Properties the exorbitant rent for the suite of offices that, he insisted as a point of pride, be at least one storey above the street and occupy at least one more room than the nearest branch of Legal Aid. So, twenty years after his dreams of glory and eminence had vanished as steadily as a salt lick in a stockyard, here he was, not quite envious of others, yet not quite satisfied with himself, pursuing a profession whose moral component was detectable only with the aid of a microscope or a philosopher. [20-21] D.T.'s phantasy of becoming a "mix of Perry Mason and Clarence Darrow, a nascent champion of lost causes, [and] reviver of trampled liberties" has simply not panned out. (i) What is one to make of D.T.'s confession that life has not turned out as he imagined it as a law student? [For an account of how professional life takes this turn into darkness, see James R. Elkins, Pathologizing Professional Life: Psycho-Literary Case Stories, 18 Ver. L. Rev. 581 (1994)]   (ii) D.T. has phantasies, as many of us have, of a "windfall" case, a once-in-a-life-time case that will make you rich. D.T. keeps meticulous time records because one of the cases might develop into "a great litigious engine that would unearth someone, somewhere, who could be directed by an appropriate court to compensate D.T. for each and every minute of his time. . . . Then he could live the way half the lawyers he knew were living--from the proceeds of that one big case, a sinecure that had fallen into their undeserving laps like a starling struck by lighting and had nevertheless generated, despite their persistent lassitude and seamless incompetence, a fee of an outrageous and easily sheltered six figures." [19]   What is the source of these "windfall" phantasies? Is it the same source that impels us buy lottery tickets? (12) Where do you stand, at this stage of your legal education, in relation to D.T. Jones, to his idealism, his realism, and his cynicism? Notes 1. Stephen Greenleaf grew up in Centerville, Iowa and was educated at Carleton College. He is a graduate of law school at the University of California, Berkeley and the University of Iowa Writers' WorkshoHe is the author of twelve John Marshall Tanner detective novels and two novels about lawyers--The Ditto List and Impact. He lives in Ashland, Oregon. 2. The Ditto List is now out-of-print. 3. Abraham Blumberg, in "The Practice of Law as a Confidence Game," argues that "all law practice involves a manipulation of the client and a stage management of the lawyer-client relationship so that at least an appearance of help and service will be forthcoming. This is accomplished in a variety of ways, often exercised in combination with each other. At the outset, the lawyer-professional employs with suitable variation a measure of sales-puff which may range from an air of unbounding self-confidence, adequacy, and dominion over events, to that of complete arrogance." [Abraham S. Blumberg, The Practice of Law as a Confidence Game, 1 Law and Soc'y Rev. 15 (1967)]     Course Readings     Home Page