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The Consciousness of the Litigator

Duffy Graham

Publication Year: 2005

An important and thought-provoking addition to the literature on the ethics of lawyers. ---Kimberly Kirkland, Franklin Pierce Law Center The Consciousness of the Litigator investigates the role of the lawyer in modern American political and social life and in the judicial process, and plumbs lawyers' perceptions of themselves, their work, and, especially, their sense of right and wrong. In so doing, the book sheds light on the unique and little-examined subject of the moral mind of the litigator, whose work extends to all corners of society and whose primary expertise---making legal arguments---is the fundamental skill of all lawyers. The Consciousness of the Litigator stands with Michael Kelly's Lives of Lawyers as a must-read for the many law students, scholars, and practicing litigators who struggle to balance ethical questions with the dictates of their highly commercialized profession.

Published by: University of Michigan Press


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The author will always be grateful to the following individuals for various and invaluable contributions to this book: Jan Deutsch, Robert Jackall, Jim Reische, Arthur J. Vidich, and each of the attorneys who participated in the field interviews. ...

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pp. 1-12

This book examines the moral consciousness of the litigator, the quintessential modern lawyer. The primary skill of the litigator is the fundamental skill of all lawyers, making legal arguments, and the litigator’s work extends to every corner of society. ...

Part One: The Context of the Litigator’s Work

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1. The Lawyer in American Society

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pp. 15-38

The first person to see lawyers as a unique occupational group in American society was Alexis de Tocqueville. His observations on the American legal profession appeared in volume 1 of Democracy in America, published in 1835. ...

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2. The Judicial Process

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pp. 39-52

The parties that lawyers represent - say, a corporation, a government agency, a spouse, or a landlord - may be at a given time in conflict with other parties - another corporation, a private business, the other spouse, a tenant. The conflict is an indication of disorder. Moreover, the interests in which lawyers represent parties ...

Part Two: The Moral Consciousness of the Litigator

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3. The Two Rules of Practice

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pp. 55-82

One of the witticisms that circulate through the back hallways and private offices of litigation practice upends the standard notion of the lawyer-client relationship: “There are two rules of practice. The first rule is The Client Is the Enemy. The second rule is Don’t Forget the First Rule.” One litigator, when reminded of the Two Rules, remarked with laughter, “And there’s actually rule number three, Remember the Rules.” ...

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4. Planting the Flag

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pp. 83-108

The litigator is obligated to attest that the legal positions taken by the client have a reasonable basis in fact or are based upon reasonable belief. The litigator is not obligated, however, to believe in the client or the legal positions taken by the client. No rule or other authority or pressure could accomplish that end. ...

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5. Enforced Realism

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pp. 109-124

The litigator’s appearance and reputation as a Hired Gun are deceptive. The litigator’s interests are not coextensive with the client’s, and the litigator’s sense of right and wrong may have little or nothing to do with the client’s. Even when the litigator’s moral view is consistent with the client’s, it derives from a different source than the client or the paycheck. ...

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Author’s Note

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pp. 125-128

I was told the Two Rules of Practice in the late morning of my first day of practicing law. Sitting at my desk in my assigned quarters, in the offices of a large firm, in a downtown skyscraper in a major West Coast city, I was briefly describing my first work assignment to the partner who had recruited me to the firm and who had come to greet me. ...


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pp. 129-136


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pp. 137-142

E-ISBN-13: 9780472023509
E-ISBN-10: 0472023500
Print-ISBN-13: 9780472115006
Print-ISBN-10: 0472115006

Page Count: 152
Publication Year: 2005

OCLC Number: 607090225
MUSE Marc Record: Download for The Consciousness of the Litigator

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Subject Headings

  • Legal ethics -- United States.
  • Lawyers -- United States.
  • Practice of law -- Moral and ethical aspects -- United States.
  • Actions and defenses -- Moral and ethical aspects -- United States.
  • Attorney and client -- Moral and ethical aspects -- United States.
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