THE CONSCIOUSNESS OF THE LITIGATOR

Vol. 16 No. 10 (October, 2006) pp.821-823

THE CONSCIOUSNESS OF THE LITIGATOR, by Duffy Graham. Ann Arbor, MI: The University of Michigan Press, 2005. 152pp. Cloth $22.95. ISBN: 0-472-115000-6.

Reviewed by Dawn M. Chutkow, Department of Government, Ph.D. Program, Cornell University. Email: dmc66 [at] cornell.edu.

Too often the study of political institutions and the actors that inhabit them takes place from a remote distance. Although objectivity is both a valuable and necessary component of academic analysis, it is equally important to understand the way in which human organizations actually operate “on the ground.” Duffy Graham offers just such a view of civil litigation in his book, THE CONSCIOUSNESS OF THE LITIGATOR. While the book purports to be an analysis of the moral struggles faced by attorneys when their values and those of a client diverge, what makes it most interesting are the revealing details and observations offered by the lawyers Graham interviews. These details suggest that scholars should take seriously the proposition that the complexity of legal outcomes may not be so easily captured by the judicial ideology measurements and case coding exercises that are often the favored analytic tools of the academic trade.

Graham begins with two chapters discussing the historical evolution of the attorney’s place in American society, and the origins of judicial realism. Both sections are nicely crafted summaries of voluminous topics, and certainly will have appeal to a wider audience seeking an introduction to the ubiquity of lawyers and the modern understanding of what it means when a judge says she is applying the law. These chapters are somewhat disjointed from the rest of the book, but stand alone nicely as separate essays. The section on judicial realism, which focuses primarily on Benjamin Cardozo’s famous lectures at Yale University, later compiled into THE NATURE OF THE JUDICIAL PROCESS (1921), actually is more in keeping with the rest of Graham’s volume, as it represents an acting judge’s reflections on how he practices his craft. Cardozo’s observations, along with earlier writings by Justice Oliver Wendell Holmes, helped dispel the notion that judging is a purely objective endeavor. This view, that engaging the law is a context specific, subjective activity, is taken for granted by modern scholars, as evidenced by the academic prevalence of both attitudinalism and positive political theory’s strategic descriptions of court behavior.

The meat of the book is in the final chapters, in which Graham interviews fellow attorneys about their vocation. These interviews are not presented, nor should they be taken, as comporting with the standard social science rigors of survey data. Graham selects eight civil litigation practitioners and uses their responses as illustration. His intent is to show the tension that often arises between an attorney’s view of a dispute, its proper legal resolution, and its overall social palatability, and the view of these matters held by the client. Because law [*822] practice is a service industry, and the attorney operates as agent, this tension often means that lawyers take cases, and pursue legal strategy that they might otherwise reject if they were making the final legal decisions alone. Graham makes a fair amount of this tension, and the rationalizations necessitated by following clients’ directions. While this is understandable, the book might have been better served by a more explicit acknowledgment of the economic nature of lawyering and the systemic implications of that reality. One of legal realism’s most powerful children is the economic analysis of law, and that discipline argues strongly for the larger value of aligning costs and benefits, regardless of the attorney’s discomfort as agent. Clients bear the costs of advice not taken, and once responsible legal advice is given, it is the client who stands in the best position to assess the compromises in terms of the risk, cost, and benefit that civil litigation entails.

Aside from the ambivalence with which attorneys sometimes approach their task, Graham and his interviewees have some interesting things to say about the nature of litigation. Most of this should be fairly well known, but nonetheless it bears emphasizing when current academic study places so much focus on judicial behavior in legal systems. First, these anecdotes should operate as a cautionary tale for those scholars who take for granted the accuracy of case coding and the databases it generates. Litigation rarely manifests as a single question. Throughout, the interviewed attorneys describe disputes that consist of multiple and intertwined legal issues, and arguments framed in terms that often obscure the essence of the underlying case. Litigation that is in fact about Chinese families seeking restitution from Japanese corporations for the wartime virtual enslavement of their relatives may take shape in court as a dry procedural issue in which the judge is only asked to address the parameters of the court’s jurisdiction. This conundrum has been discussed elsewhere, Barry Friedman’s fine article, “Taking Law Seriously” (2006), comes immediately to mind. However, the anecdotal support here highlights that for court scholars this should not be a minor issue.

Second, the observations recounted here emphasize the attorney’s role as the legal system’s gatekeeper. Lawyers not only pursue litigation, but they also are often the mechanisms by which claims are shaped or kept out of the system. In this role attorneys act as both educators and arbiters of how the law operates, persuading clients to pursue only certain aspects of cases or to settle others. Disputes that advance past this gate-keeping function, sometimes against the attorney’s advice, are cast to fit within existing legal categories. This process of winnowing and framing that occurs at the hands of attorneys before a dispute ever enters the court is a largely understudied and overlooked phenomenon.

What this book underscores for social and political scientists is the importance of understanding one’s subject, not only from a theoretical perspective, but also in practical, real-world terms. Graham’s purpose is to show that attorneys struggle with and rationalize the choices they make on behalf of their clients. That [*823] struggle is certainly worth consideration. For the academic observer, however, there is also much value in attending to how these struggles are described and what the relationships and actions taken tell us about the way law operates in the sometimes messy but real world of those who populate the legal system.

REFERENCES:

Cardozo, Benjamin N. 1921. THE NATURE OF THE JUDICIAL PROCESS. New Haven: Yale University Press.

Friedman, Barry. 2006. “Taking Law Seriously.” 4 PERSPECTIVES ON POLITICS 261-276.

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