Sunday, August 11, 2013

Defending Iago

I recently received a flyer announcing a forthcoming book: How Can You Defend Those People?  It is an essay collection edited by two law professors, Abbe Smith and Monroe H. Freedman, who have extensive experience practicing criminal law. The contributors are all members of the criminal bar, including rock stars like Mike Tigar, who defended, for instance, Terry Nichols, Timothy McVeigh’s co-conspirator in bombing Oklahoma City’s Alfred P. Murrah Federal Building. (Tigar’s lawyering is often cited as a reason why Nichols, unlike McVeigh, was sentenced to life in prison instead of death.) One objective of this book appears to be the desire to educate a broader audience about the critical role in preserving our democracy played by a particular set of lawyers: those who defend folks accused, and often guilty, of perpetrating crimes.

The struggles that many laypeople have seeing the value in the defense of those accused of repugnant crimes, including the self-evidently guilty, is a microcosm of a larger problem lawyers have being understood by normal people. Although many lawyers themselves struggle with the principle, lawyers are supposed to put defense of client, the zealous pursuit of all options available within the bounds of professional ethics, above abstract notions of The Good, The True, The Beautiful. Lawyers are supposed to advocate in hopes of engendering empathy with a particular point of view, of furthering specific interests by situating them in a context and buttressing them with evidence to show why a certain perspective is more reasonable than another. 
Except for a smattering of lawyers who are able to work for one client who pursues only causes that all would concur are noble—maybe lawyers who only serve as ad litem counsel for abused children—all lawyers at some point are called upon to represent unsavory characters or companies or industries. That is just part of what lawyering entails. Yet, culturally speaking, people seem to want all lawyers to be Atticus Finch—or at least our culture is reluctant to find anything worthy in what lawyers do unless it resembles Atticus’s work. 
Atticus defended an innocent man against trumped-up charges where the real ill was a societal one, the invidious legacy of American racism, and where the real adversary was a ravenous mob blinded by prejudice, ignorance, and fear. It sure would be great if all lawyers had the chance and the inclination to do a little time as Atticus during their careers. But part of being a really good lawyer involves confronting ugly truths yet not being unduly judgment; effective lawyering involves finding ways to frame arguments based on the rules of reason. These tasks require monitoring one’s internal prejudices at every turn, which is really, really hard to do. Because this work is so challenging, I suspect that, when civil lawyers routinely represent only one kind of entity on one side of one kind of legal dispute, those lawyers face special obstacles. For instance, if you only represent insurance companies who are being sued in coverage disputes and see your client as nothing but a job-creating victim of an unduly litigious society, you are probably less likely to give good advice about when the client should stand on principle, when it makes more sense to settle, when the client should rethink certain internal policies, etc.
When I was a callow law student, I definitely resisted embracing the identify of a true lawyer—someone who lives for a good, fair fight, who is simultaneously a servant of a specific client and of a particular system. Despite years spent grappling with postmodern philosophy, when I went to law school, I was still a secret Platonist. So during my first year of law school, I agonized over cases where the results seemed patently unfair on the merits, yet I was not supposed to care because principles like standing, statutes of limitation, forma non conveniens had foreclosed considering the deeper justice.
While I was trying to figure out whether I could contort my nature sufficiently to be a good lawyer, I met a really good lawyer who struck me as especially happy. He explained how much he loved the profession by saying that nothing would give him greater pleasure than defending someone like Osama Bin Laden—and this was only a few months after the Towers fell on September 11, 2001. I now smile to think how I was taken aback by his exuberance on this subject. It took a while, but I did come to appreciate this Happy Lawyer’s perspective.
Perhaps I could have achieved this appreciation much sooner if I had just thought more about Shakespeare!
One aspect of the Bard’s work that is truly distinctive—not only from an historical perspective—is his ability to craft psychologically complex characters. His most compelling heroes, like Hamlet and Lear, are both deeply flawed and dazzling. His most memorable villains, like Richard III, Macbeth, Iago, are memorable precisely because they are nuanced. Even though Shakespeare presents the horrible things that these villains do so that audiences have little trouble seeing them as vile, he also gives us insight into the bad guys’ motivations—how they have been wounded, how they deceive themselves as well as others, how they cling to self-justifications in a way that profoundly clouds their judgment, how they have to see themselves as the good guys (or at least as victims) in order to act at all.   
Othello, for instance, begins with Iago bitterly describing how he has been passed over for a promotion. General Othello has brushed off entries from those who recommended the old veteran, Iago, to serve as his Lieutenant. Instead, Othello has gone with the pretty boy Michael Cassio, who has “never set a squadron in the field,/ Nor the division of a battle knows/ More than a spinster.” In making this choice, Othello has, from Iago’s perspective, violated a fundamental rule of military culture, making a promotion based on “letter [i.e., book learning] and affection [i.e., personal preference]” instead of “by old gradation, where each second/ Stood heir to the first [i.e., seniority].” Iago’s personal outrage at this small-scale injustice does not excuse his decision to seek revenge in such a way that leads to the defamation and slaughter of innocent bystander Desdemona.  But, thanks to Shakespeare, his actions make some internal sense.
In short, the insights that Shakespeare provides into how all manner of human beings tick are useful to all manner of humanity. Precisely because the bad guys are not portrayed as inexplicable monsters—who sprang forth from some mysterious abyss to wreak incomprehensible havoc upon a wholly innocent society—these characterizations are art, not tabloid trash.
So, what do you know? It turns out that, when lawyers labor to give voice to all manner of folks who have been fairly or unfairly tarred as malefactors, they are really working in the honorable tradition of William Shakespeare.

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