This past August, my uncle married his partner in a small ceremony at their home in New York. For me, the most powerful moment of the day was when the rabbi announced, to great acclaim by all, that she declared them wed “by the power vested in [her] by the state of New York.” Although Mitchell and Jonathan had celebrated their relationship several years earlier at a commitment ceremony with all of their friends and family, it had lacked the imprimatur of the state. In the days and weeks following their wedding, I gave much thought to the ways that love and law intertwined at the ceremony. Ultimately, it has impacted the way I think about our profession.
I have long been a supporter of equal rights for the LBGT community. But, even though I have many friends and family members who are members of that community, my support has been relatively conceptual. I usually thought about the issue with my head rather than my heart, focusing on legal arguments rather than the impact on people. It was not until my uncles’ wedding that, for me, the issue shifted from an abstraction to the wonderful, complicated real. While I had understood that marriage equality was a profoundly moral issue, the fact that I had been approaching it from the framework of the law had distanced me from thinking about the issue in terms of people like my uncle and his husband. This conceptual distance, once I recognized it, surprised and troubled me. Constitutional principles are incredibly important, but as lawyers, we ought not lose sight of the human element — the individuals impacted by the application of the law.
Perhaps it is an obvious point. But in my three years of law school and six years of practice, it is not a point I have given much thought. Many of us became lawyers because we enjoy the cerebral challenge; we enjoy puzzling through a case or making a sound argument. I have often thought of a lawyer as a craftsman of words and arguments, not wholly unlike a woodworker. However, the process of making a quality product can sometimes obscure anything beyond the immediate goal of winning the case. As a result of this focus, I wonder how often we forget the flesh-and-blood people beyond the puzzle; the individuals on whose behalf we argue, and those who will be impacted by the precedents we set. Do we need a shift in perspective?
The separation of the law, as a concept, from the people whose disputes give rise to our cases starts in the earliest days of our legal training. From the first opinion we read in 1L year, we are taught to dissect cases clinically (for some reason using an entire box of highlighters). It is a valuable skill, but it creates a paradigm where cases are simply separated into their component parts, divorced from the messy reality of the emotions and choices that gave rise to them. Once we graduate, our practice of approaching cases as tools may grow even greater. When conducting legal research, we often start with a general proposition — X must be true — and then hunt for law to support the proposition, like a person combing the beach with a metal detector. Cases are weighed and measured for their utility, with key word searches in online databases allowing us to hone in on helpful opinions. When we pay attention to the facts of a case, it is often for the purpose of likening or distinguishing them from our own, not to consider the motivations, challenges and fears of the litigants.
None of this is necessarily bad or wrong, but it has a cost. By thinking about cases purely in terms of their utility, we move further away from the real people whose stories underlie almost every single case. And cases rarely only affect the parties, as the precedential power of opinions often creates ripples of impact down through the years. I may be guilty of projecting, but I suspect that many of us embrace the cerebral side of law and give short shrift to the practical consequences of our work because it makes it easier to provide the zealous advocacy our professional obligations require. Paying rigid attention to the task at hand is easier when we do not think about the consequences of our work for our client’s adversary, or for the nameless individuals who may one day be impacted by the opinions and verdicts we work so hard to obtain.
Even at the cost of adding certain challenges to our jobs, I believe that restoring the human element to the practice of law is an important aspiration. I am not alone in this belief. Former U.S. Supreme Court Justice John Paul Stevens was renowned for placing a high value on the human element when he served on the Supreme Court. As one of his former clerks, Constantine L. Trela Jr., recently noted in “Some Thoughts on Justice Stevens and Judging,” published in the Northwestern University Law Review, “Justice Stevens never lost sight of the fact that the court decides real cases, with real parties and real facts.”
By way of example, the former clerk related a story about a habeas petition from a federal prisoner. The inmate, a “jail house lawyer,” filed so many pro se petitions that the U.S. Court of Appeals for the Fifth Circuit ordered that the clerk stop accepting his filings. The inmate challenged this decision to the Supreme Court. Denying the inmate’s petition did not require much legal analysis, but Stevens went beyond the basic law of the case; he thought about the practical consequences of the Fifth Circuit’s order. Stevens was deeply concerned that the inmate might become a victim of abuse if prison guards learned he could not challenge their actions in court. According to the former clerk, Stevens only voted to deny the prisoner’s petition for mandamus when he learned that the Fifth Circuit’s order allowed an exception for petitions from the prisoner that alleged physical harm or threats of physical harm. Indeed, in an interview several years ago, Stevens explained that he made sure that he and his clerks reviewed every single cert petition sent to the Supreme Court, instead of joining a “cert pool” with the other justices, because he believed that “important allegations of wrongdoing from marginalized applicants whose voices deserve to be heard” must not fall by the wayside.
Stevens’ approach is inspiring, but restoring the human element to the law is not just a task for the courts. We owe our clients zealous representation, but recognizing that our cases are more than just interesting puzzles does not undermine our professional responsibilities. Perhaps, in ways that are not immediately obvious, striking a balance between a focus on the law and a focus on the people who underlie our cases will even make us better lawyers. I do not have a simple, uniform prescription for how we, as a profession, should approach this balance. Certainly, a good starting point is to remember that clients like to be treated like people. Beyond that, I suspect that being mindful that there can and should be such a balance is an important step. Thanks to my uncles’ wedding, I am finally starting to give this balance the attention it deserves. •
Michael J. Newman is an associate in the litigation department of Hangley Aronchick Segal Pudlin & Schiller. He has broad experience in complex commercial litigation involving contractual disputes and insurance coverage issues. He has counseled clients facing serious allegations such as securities fraud, insider trading and breach of fiduciary duties.