Page 44 - TA Magazine Winter 2022

W AR Y OF A WHIMSIC AL W ORLD

more to the point, if lawyers do nothing but ardently advocate Every time there is a split decision on the Supreme Court it “RESEARCH SHOWS
for their clients’ side with blind loyalty, they inevitably make means there were strong arguments on both sides of the story. THAT EXTREME REACTIVITY ...
major legal mistakes, which not only can be fatal for their cli- And it means that judges took into account some sort of value
ents’ case, but can even get them personally disciplined by a system to decide which way to go. At the end of the day, the produces a surge of ‘fight or flight’ hormones
court or disbarred by the state in which the lawyer is licensed majority in the police chase case appeared to value efficiency— that sends us into an altered cognitive state for around
to practice. drawing a red line as a matter of law to put the case to rest
without the time and expense of a jury trial—on the theory that 20 minutes.”
O, WHAT’S THE REALITY On the ground only an irrational jury would find against the police officer. The
when it comes to law practice? First, there dissenting justice valued fairness—the notion that the para-
are relatively few black or white answers to lyzed man wasn’t driving so dangerously that he deserved what
legal questions. As I tell my students, no cli- happened, and that a jury should be the one to decide whether
ent is going to pay hundreds of dollars per the government helps pay his lifelong medical expenses. The second myth that new law students harbor is that real- the partner’s concerns fully, and with compassion, if the couple
hour to a lawyer for an answer that readily ly good lawyers argue indiscriminately for their client’s side. is to have any chance of making a decision with buy-in from
comes up by just typing in a Google search. Let’s consider another legal question that’s deeply polarizing: Not so. Good lawyers instead must fully understand the other both people, thereby minimizing resentment down the line.
Lawyers are paid to try and resolve thorny the constitutional right to abortion. Back in 1972, the Supreme side’s point of view in order to represent their client well in
Sgray areas—scenarios in which there are Court basically held that there’s a certain sphere of bodily pri- the first place. This two-sidedness is very hard for students to So how do you think like a lawyer in resolving the inevitable
arguments going both ways, inconvenient facts, and no clear vacy and integrity that government can’t control for women. grasp, that is, that the juice of lawyering is in identifying the problems and conflicts that come up in everyday life?
legal precedent one way or another. This is precisely why the The case was Roe v. Wade, and the Supreme Court lodged that questions, not the answers. Lawyers must find the questions
widespread suggestion that judges should only apply the law as right in the due process clause of the Fourteenth Amendment— in a conflict—the gray areas—and then exhaustively explore Well, for starters, it’s important to recognize that there are usu-
written, and that any judge that interprets law is acting politi- the phrase that forbids government from taking a person’s life the arguments on both sides. Only then can a lawyer represent ally two sides to every coin. Slow down, take a breath, and try
cally, is folklore. Judges judge—that’s literally what their title or liberty without some kind of hearing. In case law stretching a client well. If they haven’t considered the flaws in their posi- to consider the downsides of what your heart or gut or loyalties
22 implies. Judging means weighing various factors to arrive at back to the 1920s, the Court has used that same provision to tion, they might wind up finding them out by surprise for the are telling you to do. Research shows that extreme reactivi- 22
Y ANDERSON WINTER 20 a driver was pushed off the road during a high-speed police zone exists until around the 24th week, when a fetus can sur- If you listen to the oral argument in Dobbs v. Jackson Womens’ make the angry phone call or excitedly sign on the dotted line. Y ANDERSON WINTER 20
protect against government telling folks how to raise their chil-
the best possible outcome. It also necessarily means invoking
first time at trial, perhaps out of the mouths of the other side’s
ty—either positively through excitement or negatively through
fear—produces a surge of “fight or flight” hormones that sends
some sort of a value system to break an impasse that the other
witnesses. If that happens, it’s not because someone found a
dren, whether they are allowed to procreate at all, whom to
that’s you one day, take some time to let your body get back
think enough about what the other side’s witnesses might say
A few years after Roe, in Planned Parenthood v. Casey, the
to a state of equilibrium before you send the reactive email or
40 factors might create. marry, and with whom they can have intimate sexual conduct. surprise witness at the last minute, but because a lawyer didn’t us into an altered cognitive state for around 20 minutes. So if 41
against their client.
Court decided that when it comes to pregnancy this privacy
Consider an actual legal case from over a decade ago in which
vive alone. Before that, just as government cannot force you
chase. The police car invoked a maneuver that involved strik-
to undergo a surgery, it can’t force women to carry a baby to
Health Organization, the case before the Supreme Court that is
ing the other vehicle from behind, which spun the car out of
Then, once you are in a place to weigh the options thoughtful-
Videotape from the police cruiser showed the driver moving
but if we unravel one (abortion), we put many others at risk
on “values” is a concept that many of us assume is already very
of whether to strike down a constitutional right altogether—
clear in our minds, but rarely is. Before you make a big deci-
at dangerously high speeds, but otherwise using traffic signals
too (marriage, family life) because the law is not crystal clear
something the Court has never done on this scale. What are the
C control, landing it in a ditch and leaving the driver paralyzed. term. None of these “rights” are explicit in the Constitution— poised to overrule Roe, you will hear both sides of the question ly, do so only after making a list of your own values. The focus C
TRA and driving fairly reliably. The driver sued the police for mis- on any of them. impacts beyond abortion? What are the harms of keeping Roe sion, take out a piece of paper and literally write down what TRA
conduct. The officer claimed in defense that the measure was (if any)? What is the government’s proper job when it comes to you value. Is it honesty? Integrity? Frugality? Spontaneity? The
necessary to protect public safety. And we have to ask ourselves, too, whether it’s the Supreme managing individual pregnancies, and why? values that matter to you in one situation might be different
Court who should be empowered to take that right away af- from those that matter in another. The point is to make a list of
The case went all the way to the U.S. Supreme Court on the ter 50 years on the books. Precedent matters. And justices are S I EXPLAIN IN my forthcoming book, How tie-breakers before you are mired in a complex problem. Your
question of whether the case should be tossed out on the ra- not elected or accountable to the voters. All of these practical to Think Like a Lawyer and Why—A Com- value system can provide that last straw for you when you are
tionale that no rational jury could possibly enter a verdict for considerations come into play with Roe, not just one’s personal mon-Sense Guide to Everyday Dilemmas, torn over a complex dilemma.
the driver given how fast he was driving. The court sided with moral and ethical beliefs. It’s about coercive government power. law—like life—is rarely black and white. So
the police, reasoning that the outcome was obvious from the there’s much about thinking like a lawyer One final point about the myth that lawyers are only out to
videotape. The guy was driving dangerously, case closed. This Perhaps ironically, the Court has been less willing to step in that can be brought to bear on everyday di- win. Oftentimes, the task of a lawyer is to deliver to clients
opinion was shared by conservatives and progressives alike (in- around the centerpiece of the people’s power to self-govern: Alemmas, particularly if they involve strong news they don’t want to hear. Maybe the facts are not good, or
cluding Justices Antonin Scalia and Samuel Alito on the one voting. People fight over voting rights precisely because they feelings and entrenched beliefs. One of the elements of today’s the law isn’t promising, or the path is too risky. Clients need
hand, and Justices Ruth Bader Ginsberg and Stephen Breyer are so important. State legislatures carve up congressional dis- polarization is our almost knee-jerk instinct to dig into our be- to understand that they might not get everything they want
on the other). tricts in convoluted, distorted ways to pick and choose voters liefs when they are challenged. Almost like loyalty to a sports through the legal system. Life is exactly the same way. In figur-
and make it impossible to flip a district from one party to an- team, we root for our political team instinctively, sometimes re- ing out how to live with that reality, one value comes to mind:
Only Justice John Paul Stevens disagreed in dissent, arguing that other. Yet this practice, called gerrymandering, was deemed too gardless of the merits and nuances of the issue at hand. But that gratitude for what we do have.
it should be up to a jury to decide which side wins this case— politically pesky for the courts. In Rucho v. Common Cause, kind of reactive thinking isn’t optimal in complex situations.
not a bunch of unelected judges—and a jury could view the tape the Court in 2019 literally slammed the courthouse doors to Deciding whether to take a job across the country, whether to For me personally, gratitude is the value that often provides
and conclude that the police went too far under the circum- political gerrymandering cases. If people want to stop that have elective surgery, or whether to rent or purchase a home are the path out of the darkness and into the light. It’s not a legal
stances and the driver should get some compensation from the practice, they have to go back to gerrymandered politicians, knotty questions with lots of pros and cons. If taking that job concept, but one that bears great power as we struggle through
government to accommodate for his lifelong disability. who have no incentive to change. would up-end a partner’s career, it’s important to understand the vagaries of life. TA