Vol. 5 No. 9 (June, 1995) pp. 232-235.
DIVORCE LAWYERS AND THEIR CLIENTS: POWER & MEANING IN THE
LEGAL PROCESS by Austin Sarat and William L. F. Felstiner. New
York: Oxford University Press, 1995. 191 pp. Cloth
Reviewed by Craig McEwen, Department of Sociology and
Anthropology, Bowdoin College
For years sociolegal scholars have recognized that law gets
constructed through the interactions between attorneys and
clients. Lawyers interpret legal rules, predict court decisions
and shape legal results in consultations with their clients, most
of whom never enter a courtroom or read the law themselves.
Conventional arguments contend that attorneys hold most of the
power in these interchanges and persist in translating the
multifaceted problems of their clients into terms amenable to
legal processing. A veil of confidentiality has generally
prevented any empirical study of lawyer-client conferences,
however, leaving supposition and formal legal and professional
ideologies to guide our understanding of what happens in them. In
this compact and readable book, however, Austin Sarat and William
Felstiner lift that veil and challenge conventional assumptions
in their analysis of observations of conferences between about 20
lawyers and their clients in 40 divorce cases.
As the subtitle hints, the themes of this book focus on the
fragility, uncertainty, and fluidity of power in lawyer-client
interaction in divorce cases and on the struggle to construct
meaning and to adopt provisional understandings of the marriage,
the law, the legal process, and acceptable outcomes. In an
introductory chapter, the authors set out an
"interpretivist" frame for their reading of the
lawyer-client conferences that they observed. This interpretivist
view draws heavily on the work of anthropologist Clifford Geertz
and attends particularly to the interweaving of social action and
socially constructed systems of meaning. According to Sarat and
Felstiner,"Meaning is the key word in the vocabulary of
those who speak about law in interpretivist terms" (10).
From this perspective the central problem of the book is the
apparent collision in the law office between "meaning
systems" -- the domains of personal experience and complex
social relations in divorce and of legal rules, processes and
ideology. This book examines that meeting and the ways in which
law gives meaning to social relations and personal experience at
the same time that it takes meaning from them. Central to this
examination is the issue of power which is "seen in the
effort to negotiate shared understandings, and in the evasions,
resistances, and inventions that inevitably accompany such
negotiations" (11).
The authors sharply contrast their interpretivist focus with that
of non-interpretivists who see power in instrumental terms as
"the ability to realize certain goals and advance the
interests of certain people or groups" (11). In this view
law and lawyers serve as tools for goal attainment. The contrast
in views becomes evident, for example, in Chapter 3 where the
authors follow one lawyer-client pair through four conferences
and five research interviews with the client and three with the
lawyer over a period of roughly two years. The analysis focuses
on the ways in which lawyer and client talk past one another and
avoid overt conflict despite differing views on many
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issues. We see that meaning in the interaction is often
provisional and subtly contested. Very little analysis, however,
attends to the decisions made in the legal case and the outcome
reached. For non-interpretivists those decisions and choices tell
most about power, but for interpretivists the central issues of
power reside in interactions over meaning. According to Sarat and
Felstiner, "'Who says what' is as important as 'who gets
what' in revealing law's power" (144).
The consequent image of power that emerges in this book, thus, is
of a ghost-like third presence in the lawyer-client relationship.
"Power drifts" (74) or "power can be elusive, even
to the point of disappearing" (83) or "Power was at
once shaped and reshaped, taken and lost, present and
absent" (83). "Power is not a thing that can be
possessed; it is continuously enacted and reenacted, constituted
and reconstituted." (22)
The four central chapters of the book move from reflections on
the marriage to preparation for settling the divorce. In Chapter
2, Sarat and Felstiner describe the contest between lawyers and
clients over the appropriate focus of their conferences. Clients
dwell on the marital relationship and try to interpret it in
terms of responsibility and blame. In the context of a no-fault
divorce law, lawyers disengage from these attempts to find
meaning in the past, but take an active role in attempting to
shape ideas of future strategy and goals. In turning attention to
the future, attorneys disempower clients by telling them that
their emotional investment in relationships clouds their
judgments about how to behave in the divorce process. If clients
must distrust their own judgment, the professional authority of
their attorneys is reinforced. Yet clients resist these efforts
that devalue their personal agendas and concerns, making power in
the interaction a contested domain and assuring that shared
meaning and understanding of events between client and lawyer is
elusive.
Chapter 3 examines the negotiation over "realism" and
responsibility between lawyer and client as they jointly work to
reconcile client goals, wishes and needs with what the lawyer
believes to be legally possible. In Chapter 4, we hear lawyers
interpret the law to their clients, emphasizing in particular the
idiosyncratic character of court processes and decisions. The
authors argue that these characterizations of law by attorneys
contest its predictability and fairness, much as critical legal
theorists do, and transform professional authority from one based
on expert knowledge of rules to one anchored in insider knowledge
of the personalized legal process. Chapter 5 explores the
construction of the meaning of settlement and notes particularly
the fragility of lawyer power in these discussions. In the view
of divorce lawyers, "unrealistic clients" must limit
their expectations while at the same time taking responsibility
for settlement decisions. By doing so they are less likely to
blame their lawyers when they get less than they want in a
divorce agreement.
Those familiar with the previously published articles by Sarat
and Felstiner on this unique research project will find little
that is startlingly new in this book, but they will discover much
more than a collection of prior work. Although substantial
portions of these
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earlier articles are readily identifiable in the book text, they
have been reorganized substantially in places, new data have been
added, the themes of power and meaning have been highlighted, and
recent scholarly work about law, legal practice, divorce, and
power and resistance have been neatly woven into the text. As a
result, the authors clearly have produced a book, not a
collection of weakly linked essays.
The close focus on conversations between lawyers and clients is a
major strength of this book. At the same time, the preoccupation
with that interaction and the fleeting and uncertain meaning and
power within it turns attention away from the social contexts of
the work of divorce lawyers and of the lives of clients. Although
the book draws on interviews with both attorneys and clients, it
does not attempt consistently to situate lawyer conduct in the
context of law practices or to locate the experience of divorce
clients in terms of the broad social constraints of gender and
socioeconomic status on their perceptions and choices.
Clearly, interpretivists struggle against what they view as
excessive emphasis on such structural concerns, but in their
success in limiting attention to them, they also constrain their
analysis and understanding of the social interactions and
"meaning-making" they study. In this book, the authors
are further limited by the narrow range of attorneys and of
clients who permitted research access to their conferences.
Although Sarat and Felstiner argue that their "findings are
based on samples that are characteristic of the lawyers that most
people with ordinary financial resources are likely to
consult,"(10) they also admit that "the findings of
this project should not be considered representative of all
divorce lawyers" (9). They acknowledge that their lawyer
sample -- neither book nor articles ever reveal exactly how many
lawyers were studied -- overrepresents women and underrepresents
divorce specialists with high income clients (9). In addition,
however, it fails to include those lawyers who serve mainly
working class and low income clients, often on a volume basis. We
know even less about the clients that consented to participate in
the study, but they sound in the transcripts to be generally
well-educated even if not financially secure. By missing both the
"boutique specialists" and the higher volume
practitioners with low income clients, this study ignores the
enormous and significant class variation in divorce law practice
and in the experience and perception of divorce. Gender plays a
somewhat greater part in this analysis than class, but receives
surprisingly little attention given its centrality in divorce,
the relative frequency of women in divorce practice, and evidence
from other research of the disproportionate choice of women
attorneys by female clients.
In sum, this book provides an excellent example of the emerging
contributions of interpretivist scholarship in sociolegal
studies. Noninterpretivist scholars may be frustrated both by the
persistent focus on the struggle over meaning rather than over
decisions and action and by the primary attention to the
conversations between clients and lawyers rather than to the
contexts that help to structure them. However, by reporting on a
unique set of data about lawyer-client interactions in divorce
cases, the authors
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advance everyone's understanding of this crucial site for the
creation, interpretation, communication and application of law.