From Sudden Realizations to Role Differentiation (Andrew Seaton)

It’s been a hectic couple weeks since I landed in The Netherlands, but it’s also been very rewarding. I’ve just finished my third week as an intern for the defense team of Goran Hadzic, and so far it’s been an amazing and rewarding experience. As with any internship, there is a fair amount of “grunt work,” such as running to the store to pick up office supplies or making copies, but I’ve also had the opportunity to do a fair amount of substantive work, like preparing counsel to cross-examine future witnesses, researching ICTY jurisprudence, and drafting motions. It’s been an exciting, and at times, overwhelming couple weeks, but I feel extremely lucky to be part of an internship that is not only interesting and engaging, but allows for a significant amount of hands-on substantive work.

Recently, I experienced a pseudo-epiphany that probably should have struck me much earlier: this is what real life must feel like. So much of law school concerns navigating through hypotheticals and dated cases that it is increasingly easy to disengage and forget that the actual legal process concerns real people, and our actions and the decisions we make can and will have a tangible impact at the end of the day. This idea first presented itself earlier this week when I finally caught a glimpse of our client in the courtroom over our closed-circuit television feed of the trial.  This realization was slightly disconcerting, and the fact that I am working for defense counsel for a man accused of international criminal activity, where the outcome of the case will surely carry great weight for everyone involved, only serves to amplify this feeling. But at the same time, knowing that my work will have an impact outside of the closed universe that often accompanies law school hypotheticals is exciting and helps strengthen my focus.

This leads, by what may be called an imperfect segue, into a discussion on role differentiation. Recently I emailed a former professor of mine who taught a course on ethnic conflicts at the University of Arizona where I earned my bachelor’s degree. I should explain that this particular professor was an ex-hippie, what some might call a “free spirit”; if I had to take a guess, I would say she was probably anti-establishment, etc. A significant part of the course she taught concerned the ethnic conflicts that preceded and pervaded the violent break-up of the former Yugoslavia. I wrote her an email as a way of expressing gratitude and staying in touch, noting in the email that the information I learned in the course, particularly the portions that dealt with the ethnic conflict in Yugoslavia, was particularly helpful in navigating my internship. As I wrote the email, I felt some reluctance to go into great detail what my internship entailed defending an individual accused of war crimes; accused war criminals hardly conjure up the image of free spirits, and working on the defense of one is surely considered to be part of the “establishment, man.” I wondered if, after learning this, she would regret writing my letter of recommendation for law school, or if she would cringe as she thought to herself, “how could he have missed the message behind my course so severely?”

This feeling of hesitation reminded me of a rhetorical exercise I go through with my mom any time we discuss my (hopeful) future as an attorney. In this discussion, my mom will attempt to probe the depths of my morality, juxtaposing what she views as the “right thing to do” with what she believes the stereotypical lawyer might do, you know, the one from all the awful lawyer jokes. Inevitably, she asks if I’ve ever thought about becoming a criminal defense lawyer, and when I tell her that I haven’t ruled it out, she looks disconcerted. “But what if you knew he was guilty, would you still defend him?” she asks, thinking she has cornered me. The non-lawyer answer would be, “No, it would be immoral to try and help someone who is guilty escape punishment.” Of course, I answer, “Yes, of course I would defend him. It’s irrelevant whether or not he’s guilty; he still deserves a fair trial.” At this point in our discussion, my mom tries to get me to admit that I’m wrong, and I try to convince her that even criminals who are guilty deserve due process and a fair trial, and when we both ultimately conclude that neither of us will convince the other that our answer is the correct one, we go eat frozen yogurt and talk about anything else.

I tell that story to illustrate the dilemma I faced when choosing to apply for and accept this internship position. Other than the limited research I did to prepare for my interview so as not so sound like a complete moron, I must confess that I didn’t know much about who my client was or what he was being accused of. And in that period between interviewing for the position and being offered the position, I undertook that same rhetorical exercise discussed above. The beauty of the aforementioned rhetorical exercise is that it is often purely hypothetical; nothing I say or conclude is binding on me, nor does it have any impact outside of the hypothetical situation being analyzed. However, as I noted above, this internship is not part of a law school hypo, and therefore performing this rhetorical exercise was now more challenging. I thought a great deal about role differentiation, the theory that a lawyer’s decisions and performance for a client do not necessarily reflect his own moral position or beliefs, that attorneys must often set aside their own moral reservations and take actions that others might consider immoral for the benefit of their client. Attorneys are allowed and often encouraged to operate within this sphere of amorality because society has placed a high value on affording due process to criminal defendants, and the adversarial process, which many judge to be an effective means to achieving due process, at times requires the lawyer to reserve judgment for the judge and jury. One could spend countless hours and words parsing through what role differentiation really entails, and so I decline to do so here,  both because it would most likely be unnecessarily boring and because more learned and intelligent men and women than me could do a much better job analyzing role differentiation. What I wish to convey is that, in the hypothetical, role differentiation can be carried out quite simply, but in practice, it can be a much more challenging concept to tackle.

To make a long story short, I did tell my former professor that I would be working for the defense. Before I accepted this internship, I began to prepare and rehearse a defense, in case my professor, or my mom, questioned me about any moral reservations I might have. I relied heavily on role differentiation as an important factor in explaining a lawyer’s (or intern’s) behavior to non-lawyers. But more than just mere role differentiation is at play; the defense attorney plays a pivotal role in securing justice. Defense attorneys act as a safeguard against prosecutorial abuses and judicial overreach, they ensure that trials are not merely sentencing hearings, but are conducted instead to discover the truth. In doing these things, among others, defense attorneys make sure that justice is served, both to the victims and to the accused. These words might seem lofty, maybe even too much so, and perhaps they are; but as someone who has recently grappled with the differences between the closed universe and the real world, I’ve concluded that when the rubber meets the road, these ambitions help to reconcile practice with theory and aim to ensure that real world outcomes match as closely as possible to society’s normative aspirations for what justice should look like.

I feel I might have waxed philosophical for too long now, and because, if Mary Poppins taught me anything, it’s that “a spoonful of sugar helps the medicine go down,”  I would like to share one of my favorite lawyer jokes, and coincidentally one that somewhat aligns with this post’s topic.

A lawyer, mathematician, and philosopher all work at a regional office for ACME Corporation. One day, the regional manager announces that he will give Friday off to the employee that correctly answers his top secret question, and promptly enters the conference room. The mathematician offers to go first and follows the regional manager into the conference room. He takes a seat, and the manager asks him, “What is 2 + 2?”

 “Well,” says the mathematician, “if you’re confining your question to the realm of whole numbers, the answer is 4.”

“Very good,” replies the manager, and the mathematician leaves the room.

The philosopher, hoping to take a long weekend, enters the conference room and sits down. The manager asks him the same question: “What is 2 + 2?”

“Ah yes,” says the philosopher, leaning back and scratching his chin. “Assuming an objective reality exists, then 2 + 2 ought to be 4.”

“Very good,” replies the manager, and the philosopher leaves the room.

The lawyer, both competitive and wanting an extra day off, walks in to the room and takes a seat. The manager asks the lawyer the very same question: “Counselor, what is 2 + 2?”

The lawyer looks at the manager and leans forward conspiratorially. “That depends,” he says, raising an eyebrow, “what do you want it to be?”

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