The Consciousness of the Litigator

4. Planting the Flag

CHAPTER FOUR Planting the Flag 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. The litigator may do an extraordinarily effective job representing a client without believing in the client or the client’s legal position . Still, in practice, litigators want to believe in the legal position taken by the client and in the client itself—and, by and large, they do. Some individual litigators, as a matter of personal policy, choose not to represent this or that client. There are some clients I would not do work for. Period. And we have some clients at the law ‹rm that [other] people don’t want to do work for. I do work for one client that I believe . . . many people in the law ‹rm would not want to do work for because of what their political views and positions are. Some ‹rms choose not to represent this or that client because the representation would be morally trouble83  some for individuals within the ‹rm or because the client would present a public relations problem. Thus, an individual litigator or a ‹rm may choose not to represent, say, manufacturers of cigarettes, operators of pornography websites, or logging companies, even if the representation would be lucrative or the legal work would be interesting. These decisions are rare, however, and take place at the margins of litigation practice. Also, such choices are easier to make when the decision maker does not face ‹nancial pressures to accept as a client anyone who can pay. Litigators who either do not have the luxury of choosing clients or who are willing to suspend judgment in undertaking the representation nevertheless look for some moral justi‹cation for the representation. One litigator says, “I have to be able to ‹nd some moral ground to plant my ›ag in for me to be comfortable with the representation.” Another says, “I don’t have to necessarily believe in the client himself, because [for example] I’m working on a case right now where I’ve never met the client, but I do have to believe in the client’s position . Somehow.” Some litigators refer to ‹nding something to believe in as “rationalization.” The litigator using this term means to be, at least to a degree, selfderogatory . He uses it when, even though he can articulate a basis for providing the representation, some discomfort remains. Sometimes the moral dissonance experienced by the litigator is severe. Litigators ‹nd that their job is more satisfying when they believe in the client or the client’s position. They also ‹nd that having a reason to believe makes them more intellectually curious and motivated. These comments by one recently retired litigator and one in midcareer are typical: The Consciousness of the Litigator 84
I never really felt it was a necessity that I “believe” in the client’s substantive position. On the other hand, this is a sliding scale. The less heinous the client’s putative actions, the easier the representation always was. And in fact, I often found myself believing that the client’s position was the proper one. Perhaps not surprisingly, in most cases I believe my client is mostly in the right, which probably indicates that I am subject to being convinced by my own arguments. And the more strongly I believe in the “rightness” of my client’s position, the more personal commitment I am likely to bring to the case. To what extent that personal commitment affects the quality of my representation is hard to say. Litigation is a propitious ‹eld of endeavor for those who have a vital need for moral justi‹cation of their work. The litigator can always “‹nd some moral ground to plant [his] ›ag in.” I don’t think I have ever, and maybe ever is a strong word, but nothing has come to mind where I ever thought a case that I was involved in was that unambiguous. The importance of that, I think, is, for me at least, there’s always something—there has always been something that I can believe in about a client’s case. . . . There’s very little that I’ve seen...