There are all sorts of lawyers, but the profession recognizes one distinction as basic. Transactional lawyers prepare paperwork, advise clients in the quiet and safety of an office, and negotiate deals. Litigators, by contrast, engage in cut-throat conflict. When the conflicts head to court, you might want a trial lawyer. Lose your trial, and you’ll be looking for an appellate lawyer. Head to the Supreme Court, and a new breed of lawyer emerges — the Supreme Court advocate.
Years ago, a case of mine involving an abused prisoner headed to the high court. Our phones rang suddenly, with lawyers who wanted to argue our case. They’d do so free of charge, of course. Most were former Supreme Court clerks, folks who had worked for a Supreme Court justice right out of law school and then gone on to fame and fortune in a big firm. Some were issues advocates. My partner and I turned away the suitors. It was our case. We’d argue it ourselves, and we did.
Not long ago, a colleague also had a case head to the high court. She chose to let a Supreme Court hot-shot argue her case. I thought it was a mistake. When I watched the argument in Washington, I was convinced she could have argued the case as well, or better. She let her case get hijacked by the law’s glitterati.
Marcia Coyle’s new book, “The Roberts Court: The Struggle for the Constitution” (Simon & Schuster: 2013), offers an account of Supreme Court politics by one of the nation’s best legal reporters. Coyle is chief Washington correspondent for the National Law Journal, and a regular commentator on the PBS Newshour. She covers the court daily. Her account of the court’s activity ends with the conclusion of the 2012 term; she provides a sustained look at the recent decision involving firearms and the Second Amendment, and the controversial decision to uphold the new Affordable Care Act.
The book’s primary focus is old news to court watchers. There is an ideological struggle in the court. Chief Justice John Roberts emerges as a grand, and patient, tactician, transforming the institution into a conservative bedrock. Corporations fare well in this court; ordinary civil litigants find it more difficult to keep their cases in court. 5-4 decisions reflect the growing importance of Anthony Kennedy as a swing vote, sometimes siding with the court’s conservative block, at other times siding with the so-called liberals. (Truth be told, all the justices look pretty conservative to me.)What I found most revealing, however, was the back story Coyle reported about the cases heard by the court. In the Heller decision, for example, holding that the Second Amendment provides an individual right to bear arms, you learn that activist lawyers dreamed up the case, and then went searching for the “perfect” client. In other words, once the lawyers decided how to bring the issue to the courts, they went searching for a client who put the best possible face on the issue — they settled on Richard Heller, a security guard in Washington, D.C. The client, in other words, became a prop for the lawyers’ interests.That strikes me as offensive.
Most folks come to a lawyer’s office because they are in trouble. They are being prosecuted by the government, or persecuted by a neighbor; their expectations of the world are disturbed. They want to know one thing and one thing only: Can I have my life back?
Good lawyers are not social mathematicians. We don’t know the secret formula of justice. We don’t have an existential calculator that permits us to enter variables, press a button, and then watch as justice emerges. The law is far more mundane. It consists of legal doctrines, settled and accepted ways of resolving recurring problems — those problems are taught in law school as fact patterns. A creative lawyer can mix and match legal doctrines to serve a client’s interests, satisfying a client’s desires sometimes more, sometimes less. Lawyers counsel clients on what is reasonable to expect. It isn’t a whole lot more complicated than that.
The law is not an arcane science, despite efforts by law professors, who rarely counsel clients, to make it so. When you knock on a lawyer’s door and ask for advice what you want to know is really quite basic: How do I preserve what’s mine, or get what I want? Put another way, what are my rights and responsibilities?
Lawyers are really no more than guides for the perplexed, helping folks navigate the confusing thicket of legal doctrines and procedures that we call the “rule of law,” as though the law were simple to discern and easy to apply. A good lawyer learns early to listen. What does success look like to the client so eagerly in search of representation? A smart lawyer learns to turn away those who want what the law cannot supply. Sadly, many folks turn to the law for redress of deep-seated psychological grievances the law cannot resolve.