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Thursday, March 5, 2015

If Justice is for Sale, Does Advocacy Even Matter?

I had an interesting telephone conversation with my good friend Joshua Karton a couple of days ago. He wanted to know whether I thought online advocacy classes would push budding advocates further away from the human connection in the courtroom that is such a vital component of the trial advocate's art. He spoke of the relentless forces that already hinder access to courtrooms and wondered whether technology is becoming yet another barrier to justice for the poor and the powerless.

Last summer, I taught an online advocacy course. I intend to write more about that experience in an upcoming blog post. In the meantime, I must admit that my conversation with Joshua caused me to take a mental step back and try to see the big picture of the adversary trial system and identify the forces that might interfere with the search for truth and justice. 

This afternoon, I read an article in Politico Magazine online that gave me pause. In the article, I Was Alabama's Top Judge. I'm Ashamed by What I Had to Do to Get There: How Money is Ruining America's Courts. Sue Bell Cobb, a former Chief Justice of the Alabama Supreme Court writes about the corrupting influence of campaign donations on the justice system. She asks a provocative question: "How do we convince Americans that justice isn't for sale--when in 39 states, it is?"

When I teach trial advocacy courses, I try not to be cynical with the students. I want them to believe that their efforts might make a difference for clients. I want them to feel a sense of professional obligation as they learn case analysis, all the individual skills that are part and parcel of trying a case, and the art of advocacy. 

But what if it doesn't matter? What if outcomes are pre-ordained by forces outside the courtroom? I often show my students Atticus Finch's closing argument in To Kill a Mockinbird. It's a powerful argument, well and persuasively delivered by Gregory Peck. And it's also a losing argument, one that never had a chance to succeed in a courtroom where the outcome was already determined because of the prejudices the jurors brought with them into the jury box.

In law school, I took a public interest law course. I thought the course would be primarily about how to help the poor with their immediate problems--navigating the welfare bureaucracy, obtaining relief from oppressive creditors, finding affordable housing. But I learned it was much more than that. It also involved taking a look at the structures and systems that created or contributed to those problems in the first place and learning how to change laws and influence organizations for the public good. 

I wonder if perhaps it might be worth it to take a broader view of the justice system when we teach trial advocacy. Perhaps it would be a different course altogether, a separate course such as a jury trial seminar. But it might be worth it to get our students to start asking questions about the system itself, even as we train them to be technically proficient advocates within it. It would be a tragedy if they were all as good as Atticus Finch in courtrooms where it didn't matter. 

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