Professional
Responsibility
Making Ourselves the Subject of Study
Reading John M. Conley and William M. O'Barr, Rules Versus Relationships: The Ethnography of Legal Discourse (Chicago: University of Chicago, 1990), I find striking similarities between what Conley and O'Barr set out to do in their social science research and the philosophical methods we can put to use in learning lawyer ethics.
Conley and O'Barr introduce their study as follows:
This is a study of the ways in which ordinary people relate to the American legal system. It deals with such issues as how lay people identify and analyze legal problems, how they decide when and in what form to bring a problem to the legal system, and how they respond to the demands that the system makes of them. The central, recurrent theme in our research findings is the striking divergence between the approaches of lay people and legal professionals to the resolution of everyday problems. [ix]
We might restate the practical moral philsophy apects of a course in legal ethics in Conley and O'Barr terms: The moral dimension of lawyering involves a study (an inquiry) into how law students relate to the moral dimensions of American style lawyering. We explore how students of law identify and analyze moral problems, how they decide when and in what form to consider a problem as moral in nature, and how they respond to the demands that the adversarial ethic and conventional views of zealous advocacy press upon them.
Conley and O'Barr note that they have "attempted . . . to take an inductive approach that would not bind us to existing theories or analytic structures." [ix] A practical moral philosophy approach to lawyer ethics follows a similar approach. Most of us, I assume, don't have much in the way of "existing theories" or "analytic structures," or even an explicit moral philosophy. While we each have a moral philosophy, it has not, for the most part, been a subject of study and formal analysis. Of course, we make use of theories and analytic structures, and they can, when explored be related to a moral philosophy. But most of us, most of the time, operate without knowledge of the theories that underlie our practices. We don't know whether we are deontologists or not. We don't imagine ourselves doing metaphysics (in most instances because we don't really know what it is). Basically, we live day-to-day, doing our work, living with our families, worshiping in our churches, taking vacations, all without resort to formal philosophical theories. We may know, vaguely, that Plato and Aristotle are important names in philosophy; most of us have not studied the famous philosophers. We do not expect college educated, professionally trained elites in the United States to know anything about philosophy. Indeed, we may not even be sure what philosophy is or why it is held by some in such high esteem. Many of us believe that whatever philosophy is, it isn't all that important for the way we live and practice law.
Conley and O'Barr sought to conduct their study of "the beliefs and practices of people who had identified themselves as having legal problems, had reasoned through their problems, and were trying to resolve them through the legal system." [x] It is at this point that Conley and O'Barr and our efforts to pursue a practical moral philosophy approach to lawyer ethics are at a crossroads. Following Conley and O'Barr, we would set out to study the beliefs and practices of people (ourselves) who have identified their moral philosophical problems and are trying to resolve them through some system (of ethical rules and adversarial practices). Conley and O'Barr, in contrast to our study of lawyer ethics, are studying the beliefs and practices of others. In lawyer ethics, we study our own beliefs and practices. Conley and O'Barr were acting as typical social scientists, using someone other than themselves as "subjects" of research. In law school, we study law like social scientists; the law is a subject involving others. The broken promises of contract law, the personal inflicted harms of torts, the social battle over abortion are, for law school purposes, someone else's problems. We learn legal rules and we learn to apply them; more accurately, we watch as judges and law teachers apply them to others. In legal education we are not encouraged, expected, and in many cases, even permitted, to include the self the subject of law study. Law, rules, and clients are our "subjects," rarely are we asked to study ourselves.
Conley and O'Barr's study is of litigants, subjects who have already self-identified their problem as legal in nature. We students of lawyer ethics have not necessarily identified ourselves as having a problem, moral or philosophical in nature. More likely, we have come to quite an opposite conclusion: We assume we do not have moral problems that need to be resolved or even addressed. And even when we admit that all is not well, we assume things will work out. To ask those who feel they have no problem, to consider their own problems that they claim not to have, results in some rather odd moments. This situation makes moral philosophy uninviting.
The subjects of Conley and O'Barr study--litigants in small claims and magistrate courts--had no doubts about their problems, that the problems were legal in nature, and that the legal system was the place to address the problems. In the study of lawyer ethics even those who are willing to admit that they have problems do not identify them as moral or philosophical in nature. Teaching legal ethics, I have often been astonished at the effort of law students to identify moral problems by whatever term possible so long as the word moral does not appear. One learns rather quickly that there is great power and defensiveness in labels. Students who resist identifying dilemmas they confront as moral problems are not, I think, simply engaging in semantic word-play. When we quarrel over how to label the problems we discuss we learn how words matter and how meanings are constructed by words. This is the work common to both lawyers and moral philosophers.
The litigants in Conley and O'Barr's study submitted their problems to a system of adjudication. This is what law does: It solves problems, it produces an authoritative statement backed by the violence of the state that gets disputing parties off of dead center. Judicial resolution of a dispute changes the nature of the dispute, changes the way parties talk about what has happened, and about how the future of the dispute will be imagined.
Faced with moral concerns and philosophical problems, we find no system that offers authoritative adjudication. There is no equivalent of a judicial resolution for matters subject to philosophical dispute. In the absence of an authoritative resolution of on-going disputes, we assume that legal and philosophical problems are of a fundamentally different nature:
- one objective, the other subjective;
- one social, the other personal;
- one subject to reason, the other to personal preferences for which no justification is necessary;
- one subject to public discourse, the other not;
- one leads to the acquisition of skills of practice assumed to be socially useful and sufficiently valued so that various members of the public are willing to pay for the use of those skills; the other leads to endless debate and unresolved quarreling with little social use and virtually no value in the market place.
Is it any wonder that students of law are so fond of law and so skeptical about philosophy? Law produces answers and solves problems. Philosophy produces conversation and leaves us with unanswerable questions.
Conley and O'Barr point out that they had "hoped to discover disputes at their inception and then track them through the system. Our ideal was to capture an early 'uncontaminated' account of a dispute--as one neighbor might tell it to another over the back fence . . . and then observe the evolution of both the dispute itself and the parties' accounts of it." [x] In Practical Moral Philosophy for Lawyers we look to discover disputes at their inception. Our disputes are discovered during the course of our conversation and of reading about lawyer ethics. We need to know more about these disputes, how they arise, how we are to talk about them, and what they may tell us about the legal profession.
A lawyer ethics course itself might be viewed as a disputed terrain and as such the course itself must be watched carefully. What kind of rhetorical moves become part of the course dispute? How are these moves made a part of the conversation and how do they impede it? What roles do we find being taken on? What voices do we use in these roles? How is ethics disputed?
Conley and O'Barr use an interesting word--uncontaminated--to describe the ideal they wanted to express in their descriptions of the disputes (x). What is one to make of such a word? How can our descriptions of disputes, in court or out, ever be uncontaminated? When neighbors talk to each other over the backyard fence, the example Conley and O'Barr use, are they presenting uncontaminated positions? Even if Conley and O'Barr use the term to mean uncontaminated by legal thinking, could this be possible? Is there anyone in America, in this day and time, who has not had exposure to lawyers and trial lawyer dramas on television, popular films, novels, newspapers and other print media? We are, one might argue, contaminated by legal consciousness, to the point that our "popular" conceptions of law, lawyers, and the judicial system are a major factor in how we attempt to solve problems.
Conley and O'Barr observe that there is a body of literature that discusses the "transformation" of disputes as they move through the legal system toward resolution. [x] While there is no formal route or system for moral disputes to follow, we may find, nevertheless, that moral and philosophical disputes are transformed as we identify them, talk about them, puzzle over them, and learn to live with them. Indeed, learning to live with moral and philosophical concerns may have an analogy in the legal system. We attempt to solve some social problems by resort to the legal system and find that they are not, alas, fully resolved at all. (See e.g., Katherine Anne Porter's novella, "Noon Wine.") It is the truncated nature of our study of legal problems that leads to the conclusion that they get solved. [Anthony D'Amato notes that law schools don't concern themselves enough with what happens before the parties came to their lawyers, what happened while they were talking to their lawyers, and what goes on after the case gets settled or tried in court.] Basically then, we make assumptions about the power of law to solve problems, when it may be more accurate to say that the law is the way we cut short the conversation about problems.
We run moral concerns through some story, some life we are living, and they come out adjudicated. A moral and philosophical problem is not beyond remedy, adjustment, rebellion, strategy; it is just beyond authoritative resolution. Philosophical concerns are like high blood pressure, rather syndrome than symptom. We take philosophical concerns into account and we live with them but we don't eradicate them. Social problems translated into legal problems may be more like this than lawyers would like to admit. We are, in some ways, an impatient people. Law is one way we address our impatience.
Conley and O'Barr admit that "[a]s a practical matter" they found it "virtually impossible . . . to come upon a dispute in any sort of pristine form. In most cases, by the time the first account is given to a third party, the dispute is likely to have undergone significant changes" since the events occurred. (x). A dispute, or moral concern, has a history. We can chart its changes over time. We may be able to trace it back, to some happening, or event, or some person. We may never be able to tell the whole story, or the true story, or live up to the fantasy called objectivity, because we are dealing with history. The history of a moral dispute is itself a story. In this story,we tell what happened, how we felt then, what we did, what others did, how we responded, and what has taken place as we learn more about the situation we were in. The sentiments, feelings, and attitudes bound up with the dispute/problem/concern are encoded in a story, a history. Whatever we say now must, in some fashion, be addressed to history and story.
Conley and O'Barr presumed in their initial design, "that a dispute has some concrete existence independent of the accounts that constitute its expression. On the contrary, early in the study we were drawn to the conclusion that at any particular point in time the dispute is the account being given at that time. Each new account that the disputants give--whether in arguing with each other, talking to friends, being interviewed by researchers, or testifying in court--reflects somewhat different understandings, beliefs, and emphases. Thus, any account is both determined by what has gone before and determinative of the present and future shape of the dispute." [x] There is, it seems, a shift in Conley and O'Barr's focus, from the story/history of a dispute to what is presently being said about it. Rather than history, Conley and O'Barr call our attention here to rhetoric, how our speaking "reflects different understandings, beliefs, and emphases." [x] We are left by Conley and Bar with two different perspectives: the accounts we give now for our problems (rhetoric) and how we happened (by some storied accounting) to have the problems we do (history).
Conley and O'Barr observe that "[m]any social science research traditions...use language as a window through which other, presumably more important, things may be viewed. Thus, an anthropologist might use an indigenous language as a means of collecting information about the objective reality of local-level politics, or a social psychologist might treat language as a transparent means for collecting attitudinal data.
Our premise has been that the window itself is often more interesting than what can be seen through it. As they tell stories by giving their accounts in varied settings, continually making decisions about structure, content, and forms of expression, litigants leave revealing fingerprints on this linguistic window. In listening to litigants' accounts, we have concentrated on what they say and how they say it rather than trying to impose predetermined structures and categories on the data. [xi]
Conley and O'Barr elect to "treat the language of the litigants as the object of study rather than as a mere instrument." [xi] Can we treat our language, in the accounts we give each other of lawyer ethics, as the very thing we are meant to study? How do professors in other courses respond and react to the language you use when you try to talk law? Do they make your "law talk" an object of study? If so, how do they go about this effort to make educational what is tendered by the student as no more than an answer to a teacher's question. Which raises another interesting question: Why do you talk in class? What educational purpose does it serve?
These comments by Conley and O'Barr about their research methodology raise some interesting questions:
To what extent can we, or should we, try to act like social scientists, when we study lawyer ethics and the philosophy of lawyering?
Conley and O'Barr call their work, an "ethnography of discourse." [xi] "[I]t shares with traditional ethnography an emphasis on careful, detailed observation and inductive analysis...." They describe their method this way: "We listen to and record talk as it occurs, and then we meet with research assistants and colleagues to analyze the resulting tapes and transcripts. In sessions lasting about two hours, we repeatedly listen to an account or case while following along on a transcript, make notes for about twenty minutes, and then present our observations in a roundtable discussion. Occasionally, we identify a general topic for analysis (for example, how the litigants deal with questions of responsibility), but most sessions are open-ended, with the analysts attempting to focus on what is important to the litigants. A striking aspect of these sessions has been the consensus among the analysts--even those not previously involved in the research--in identifying and agreeing on issues of interest." [xii]
Do Conley and O'Barr offer suggestions in this description of their ethnography of discourse that would be of use in a study of lawyer ethics? In a law school course in which law students practice moral discourse?
Conley and O'Barr admit that their approach is subjective in nature but prefer it as a way to avoid a priori judgments--the litigants set the agenda--and by keeping the subjective aspect of the work out in the open invites criticism and alternative interpretations of the data. [xii-xiii] .
Conley and O'Barr are candid about the absence of an initial hypotheses to guide their work: "We began this study with no detailed working hypotheses beyond the belief that litigants' talk would yield important clues to the way that they deal with legal questions." [xiii] Following Conley and O'Barr, we might admit that there is no subject called "practical moral philosophy for lawyers." The only course is the course we create with our readings and conversations. The only philosophy we have to study are the philosophies we find presented in our conversations (as amplified and questioned in the texts we read along the way). The moral dimension of our language, talk, conversation, and speech can be seen in the qualitative differences we note: There are serious, high-minded conversations; conversational banter; greetings, being civil, asking about another's health, "How's it going?" "Fine, fine. And you?"; and the conversation of invective. As Conley and O'Barr say of the litigants in their study, we put fingerprints on our linguistic windows.
Like Conley and O'Barr, I cannot know how we will talk and how, whether, or by whom, our conversations about moral philosophy might be valued. I can only try to appreciate what I hear and the interpretations we devise for what we are told. ("Because we did not know what we would find before we started, and did not appreciate what we were seeing until we were well into the analysis of our data, we could not channel our interviews and observations toward the production of readily quantifiable data.") [xiii] Conley and O'Barr describe their situation as one of "an ethnographer beginning to observe a previously unstudied society." [xiii] Following the tradition of ethnography, they set as their goal "the generation of a descriptive model of the range of variation in the litigants' behavior." [xiii] In a legal ethics course we are the litigants, the subjects of the study, but we are also the social scientists. To follow the ethnographic tradition adopted by Conley and O'Barr, we must act like social scientists and study ourselves.
Conley and O'Barr are looking for, and examining phenomena that "is not readily quantifiable under any circumstances." [xiii] If you are dealing with phenomena like morals, ethics talk, professional responsibility, lawyer ethics, philosophy, you find that it doesn't lend itself to quantification. As with Conley and O'Barr's litigants, "[t]here are not any particular words or actions that clearly mark an individual" as having one kind of moral philosophy or another. We are, if we are anything, "a complex of often subtle tendencies." [xiii] We are complex in the sense of not being all one thing or another. We don't give up easily to being pigeon-holed. Most of us don't care much for labels, at least when they are being applied to us. And even when we use labels we see rather quickly how limiting and distorting they can be. We use labels for convenience and efficiency; we use them for the partial truths they represent. But labels make us lazy, implicate us in bad judgment, and can be pernicious.
Concluding their introduction, Conley and O'Barr suggest that their study
is a "beginning rather than an end." [xiv]
"We have attempted to provide sociolegal scholarship with a new perspective
on the fundamental question of the place of the law in the larger cultural
context." [xiv] In a legal ethics course
that seeks to be an ethics and philosophy course as well as a rules and
law of lawyering course. We must attempt to engage in moral discourse
that focuses on the fundamental concerns we have about the place of legal
thinking and the adversarial ethic in the larger moral context of our
lives.
