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The Consciousness of the Litigator

The Consciousness of the Litigator

Duffy Graham
Copyright Date: 2005
Pages: 152
Stable URL: http://www.jstor.org/stable/10.3998/mpub.113808
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  • Book Info
    The Consciousness of the Litigator
    Book Description:

    "An important and thought-provoking addition to the literature on the ethics of lawyers."---Kimberly Kirkland, Franklin Pierce Law CenterThe Consciousness of the Litigatorinvestigates 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 Litigatorstands with Michael Kelly'sLives of Lawyersas 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.

    eISBN: 978-0-472-02350-9
    Subjects: Law
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Table of Contents

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  1. Front Matter (pp. i-vi)
  2. Table of Contents (pp. vii-viii)
  3. ACKNOWLEDGMENTS (pp. ix-x)
  4. INTRODUCTION (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.

    The termlitigatoridentifies a type of lawyer. The term is descriptive and shorthand. It suggests certain occupational tendencies, but, at the margins, the work from one litigator to the next varies in particulars and emphases.

    The main task of the litigator is to provide legal representation to parties in lawsuits filed in the courts, but the litigator also provides other...

  5. PART ONE The Context of the Litigator’s Work
    • CHAPTER ONE The Lawyer in American Society (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 ofDemocracy in America, published in 1835.

      Tocqueville undertook his study of American political and social institutions out of abiding concern for the future of France and, more immediately, alarm over the July Revolution in 1830 and the crowning of Louis Philippe, the “Citizen King.”¹ From the moment in 1788 when Louis XVI summoned the Estates-General, unleashing the forces that destroyed the ancien régime, through the Terror and the short-lived First...

    • CHAPTER TWO The Judicial Process (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—the pursuit of money, of some new advantage, of some vision of the way things ought to be, or of some other satisfaction—if realized, change the social order in some way. Even pursuing such interests upsets the social order.

      In the United States, the forum to which...

  6. PART TWO The Moral Consciousness of the Litigator
    • CHAPTER THREE The Two Rules of Practice (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.”

      Many lawyers recoil instinctively from the Two Rules. Lawyers depend on clients for livelihood and career. This dependence fosters a public face of support for the client. Any suggestion that the client...

    • CHAPTER FOUR Planting the Flag (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. 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...

    • CHAPTER FIVE Enforced Realism (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. It derives from the work. The object of the litigator’s work and the medium of his practice are the cases, and the cases—the facts, the civil procedure, the substantive law, and their interplay—are complex.

      Litigation does not...

  7. AUTHOR’S NOTE (pp. 125-128)
  8. Notes (pp. 129-136)
  9. Index (pp. 137-142)