The Advocate in Shining Briefcase: Whose fight is it anyways?
(Ideally nobody's) I am amazed the number of times I have heard sentiments bounced around about the gladiatorial "advocate" when it comes to my profession. Consults call asking for somebody to fight for them. We view our lives through the lens of the stories we chose to tell about our lives. Clients lobby recriminatory sniffles of "you didn't fight for me!" There are many ways in which counsel can fail - being blind to legal nuances, ignoring the client's interests, acting absent diligence or competence, etc. - but this fighting thing... When and why should it be synonymous with advocacy?
Clients in distress - and most clients are manifesting some form of distress considering the situations that bring them to our doors - are frequently drawing on this storyteller's urge to cast themselves as the damsel in distress waiting for the knight in shining armor to slay their dragon. The more they tell this story to themselves and to others, the more embedded in their brains it becomes, and the more easily they edit their perceptions to conform with this story. The oppositional attitude solidifies and permeates their own self-perception, causing them to entrench in the fairly unsavory role that they have chosen for themselves. Perhaps because they are overwhelmed, they seek a third party to take on their story and find them a fairly gorey version of their happy ending. When I take up this mantle, of course, I take up the chance of becoming the dragon myself if I do not live up to my shining gauntlet... the damsel is already taken in this story, after all, and probably twice over.
My personal take on this classic triangle is that the client herself is all three - dragon, damsel, and champion. When I intrude upon this inner turmoil by externalizing an inner piece of a delicate personal puzzle, I'm creating a symbiosis that puts us both at a disadvantage. There's a saying that a lawyer (or any professional) who represents himself has a fool for a client. There's verity in this. People repeatedly have demonstrated clearer perspective for third parties than for themselves. We are riddled with cognitive biases and a skewed myopia that distort our self-perceptions so imperceptibly that we are ill-equipped to guard against the distortions.
This is true in many arenas of law - where compromise may be painful, but could spare years of increasingly systematic confrontation and costs in litigation. It's especially true in family law, where the stakes are so high and the pain so raw. Studies have shown divorce is the highest stress event in most people's adult lives. We have a primal need for attachment, perhaps more powerful than the need for food. When that attachment is severed, the world itself comes apart. This is natural and biologically embedded. Whether the client is the instigator or the one being left, both feel that loss of space, security, and identity in a palpable manner. They've lost their story about who they are and what the world around them is. Each may wax between pushing away and pulling in, as they turn to a familiar sense of conflict and hurt to avoid the terror that is an unwritten future. In such a fight-or-flight flood of emotional baggage, it would be atypical to act rationally or easily view the situation with a modicum of perspective. And the fight-or-flight mode lacks taste for metaphor - it is fantastic for killing an aggressor or evading a predator, but fails in a world of social nuance and mental delicacies. How many of us have lashed out during a bad break up and done things we've instantly regretted? We do not, put briefly, tend to have an immediate sense of our own best interest at these times.
Taking on my client's emotional baggage blinds me to the larger picture and interferes with my ability to point out the road to healing. There is a time for upset, and a time for grieving. These are part of the quotidian cycles of human existence, an existence defined by impermanence. When we take on our clients' emotions, we draw out that fight and consequently escalate that fight-or-flight reaction. The damage that this can do to people is both emotional and practical. If they have not disengaged with their conflict, they cannot not have the space for grieving, assessing, redefining, or forming new stories. Their sense of self is stuck in the story of hurt. Their relationships are under a pall of suspicion and doubt as the motif of betrayal threads through their life narratives. As they retell their story of hurt again and again and again - a necessity in legal actions reliant on declarations and testimonies - they delve further into it and away from moving forward. The energy that could be focused on recovery are channeled into an escalation that has the satisfaction of scratching at a bad burn.
And then there are children. I am the child of divorced parents and disagree that divorce is always a bad thing - it was actually an amazing time of discovery for both of my parents and led to a reawakening of deeper relationships with them for me. But it can be extremely damaging. The more parents demonize each other and triangulate the children, the higher the risks of every kind of hazard that parents seek to avoid - acting out, drug use, behavioral problems, disengagement, and so on. This is hardly in either parent's interest, but they may be so rutted in their story that are unable to see the story they are writing for their children. They may conveniently foist the blame on what they see onto the other parent, increasing that tension in a way that permits them to stay static while avoiding their responsibility to move forward.
I do want my client to reach his happy ending, but the power to do that lies strictly within my client. I can certainly stymie or facilitate his progress. I can navigate and translate the legal system, enabling him to make informed choices and avoid pitfalls. I can ask the questions he may lack sophistication to think of, and intuit likely outcomes in a foreign world. And I can bring my experience and third-party perspective into conversations to prod the client from the tree trunk to the forest - again, helping my client make informed choices. I can use empathy - not sympathy - to see what my client sees, and when the client needs somebody to speak on his behalf, I can act as a translator. I am speaking on my client's behalf, but not as the client in these cases. And I can translate what others are saying in words that I hope my client understands. I can't tell my client what his happy ending will be, but I can guess when his image of that ending is tangled with consequences that he cannot see from a view of anger and hurt. When we write legal documents, we are expected to present what the client tells us with reasonable inquiry. The same standard should apply when determining what our clients' interests are. Merely taking them at their first word makes no more sense than failing to question an unlikely claim on an interrogatory.
Does that make me an "advocate"? I would argue yes. If you look up the origins of the word, it comes from the latin advocatus "one called to aid." It is related to the etymological root -voc, or voice. In greek, the word is parakletos, "one who pleads another's cause, who helps another by defending or comforting him." In parts of the the New Testament this is the term applied to Jesus, just in case lawyers needed any more reason for a Messiah complex. In modern language, it often refers - circularly - to "one who pleads the cause of another, specifically in a tribunal or court." But it may also be "one that supports or promotes the interests of another." None of these definitions suggest that my duty as an attorney is to enter into blind gladatorial combat at the command of my client. The dichotomy between advocate and counselor is artificial in many regards. Counseling helps a client identify the interests that we promote through advocacy. Note that I say "interest" and not position. In my interpretation, it would not be advocacy to promote a position without identifying the underlying interest, even where the means do not provide additional harm to the client. Nor would it be advocacy to take on the client's persona and speak with *my voice* when I am meant to help the client speak with her own. I speak on behalf of - not in place of - the client.
That is not to say that litigation or less compromising practices of law are unethical or that advocacy requires peacefulness and collaboration at all times. Sometimes a client's voice cannot be heard without the formal legal structure that we have in place. Sometimes a client's interests can only be met through formal action and hard bargaining. If that route is followed, I would hope that it will be done with all due respect and balance by the attorneys on both sides and towards all parties. Some clients hope for a play between attorneys and bristle when their attorney is amicable with "the opponent" or respectful to the opposing party. Even still, we should resist putting on a show for our clients, as this serves our interests and not theirs. As attorneys, our egos and personal issues linger on the periphery of our client-relationships, and the danger of merging our client's baggage and egos with our own only complicates our role as knights in shining armor. My client benefits from my reputation, even if in singular instances and underhanded or dishonest strategy may give her temporary gains.My client benefits from having children who are not scarred by years of anger and recrimination. To the extent that this can be avoided, I am serving my client regardless of the legal avenues we chose to do so.