And if so, what does that mean?
Before I get started, some words of thanks to subscribers/readers of Justice Blog. Justice Blog is part of my late middle career change. Prior to two weeks ago, pretty much everything I wrote professionally for thirty years was for a client or my organization. Even when my writing was not officially on behalf of my organization, I had to keep my organization in mind. For the first time, I have no such constraints.
I am doing this mostly for myself as a creative outlet. At the same time, I really appreciate every person that subscribes/reads Justice Blog and when I subscriber is somebody I know, it usually brings back a good memory, sometimes random ones (Erica, great day with high school friends at Magic Mountain many, many years ago!). I am most amazed when somebody who I do not know chooses to subscribe.
I am committing to do a post every Tuesday based on feedback from my Substack advisors Sofia Fernandez-Gold and Pooja Chaudhuri. I have a lot of ideas. What I say comes from me but sometimes subscribers/readers may affect which idea gets written about in a given week. I wrote a “serious law” post last week about abortion because I looked at some of my early subscribers and thought I needed to write a post focusing on legal analysis. There will be more such posts coming, especially as the Supreme Court term winds down in June, but I will also be writing about subjects like “inquisitive vs. inquisitorial management,” a civil rights lawyer Hall of Famer, and the role of the Civil Rights Act of 1964 in bringing major league sports franchises to the South. I chose the post for this week, which starts briefly with my law firm experience, because a law firm colleague, Kevin Chacon, signed up as a subscriber. Kevin grew up a few miles from me but in a much rougher neighborhood and is an passionate fan of all Los Angeles sports teams. Here is to you “Chac.” Thanks for subscribing.
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In my first job out of law school at a firm, when one of my fellow junior colleagues was a little too proud of a brief they had written, I would ask: “Is it art?” I would say that about my own briefs too. I was doing that in order to humble because how could a brief in a case, usually involving a corporate dispute, possibly be compared to a piece of art? And I have no artistic skills — I cannot draw or sing, do not play an instrument, and my lowest grade in middle school was in art — so the idea of legal practice as art was laughable to me.
But my thoughts about this have evolved. Now I believe there is an art to impactful progressive lawyering. In describing a case to a fact finder, a legal team should be telling a compelling story with their clients as heroes, or at least victims whose rights must be vindicated. And there can be beauty and craft in briefs written at their highest level. More than that, trying to move the needle to achieve a more just and equitable legal system requires substantial creativity, especially as the judiciary appears to be getting increasingly conservative.
One personal favorite is the case that became League of Women Voters of Ohio v. Blackwell (later Brunner) because, in my mind, it was a creative use of a bad Supreme Court decision to achieve good results. Ken Blackwell was Ohio’s Secretary of State during the 2004 election. He seemingly was doing everything possible to make voting more difficult, including, I kid you not, at one point requiring voter registration applications to be submitted on a specific weight of paper. Not surprisingly, Ohio’s administration of that election was a disaster, and many people were searching for a theory to fix Ohio elections.
I found one in an unexpected place. I thought the Supreme Court’s decision Bush v. Gore was result-oriented and not properly grounded. The Court ruled that there could not be a recount because it would violate the Equal Protection Clause by treating voters differently based on where they lived. I think the Court majority knew the decision was weak. Instead of stating a legal principle that future courts should follow, the Court attempted the opposite by stating its reasoning was “limited to the present circumstances for the problem of equal protection in election processes generally presents many complexities.” Justice Scalia, who joined the five member majority, called the decision a “piece of shit” according to a biography of Justice O’Connor.
The Court’s admonition aside, I came up with idea of using Bush v. Gore to protect voting rights because in Ohio, people’s voting experience varied dramatically based on where they lived. So the Lawyers’ Committee, along with two law firms, brought the case with the Bush v. Gore legal theory as the main theory. We survived the State’s motion to dismiss under Rule 12(b)(6) (the State argued that even if every factual allegation in our complaint was true, there was no legal theory under which we could win) but the judge was so unsure about his decision on the legal issue, he encouraged the State to file an immediate appeal to United States Court of Appeals for the Sixth Circuit, which it did. But the Sixth Circuit unanimously found in our favor and validated our legal theory. This led to a precedent-setting settlement. I recognize my bias in thinking that my devising this legal strategy is an example of progressive lawyering as art. But I think of it that way.
Before I left the Lawyers’ Committee, I asked the question of whether progressive lawyering is art in an email to one of my colleagues, Ryan Snow, who is an artist. For about a decade, after he went to college and before he went to law school, Ryan made a living playing the trombone. Ryan answered my question “yes.” Here is his thoughtful response:
Certainly, in many important senses, our work is art.
One of the core philosophical questions of what defines art is whether and to what extent art (a work of art or an artistic practice) has any inherent meaning independent of its subject matter, its audience, and its cultural context. Many people would take an absolutist view—that art must have some inherent meaning in and of itself in order to be art; that the meaning of art is determined solely by its audience’s experience of its subject matter within its cultural context; or that art must have a utilitarian purpose to have any value or meaning at all. I would just say that art can have layers of meaning, both objective and subjective, and that most art can be generally understood along a spectrum connecting “pure” art (i.e. art for art’s sake, e.g. an abstract painting; free improvised music) at one end with “utilitarian” art (i.e. purpose-driven art, e.g. a beautiful piece of furniture; a protest song) at the other. (I also might take the absolutist view that all artistic meaning is subjective rather than objective or inherent, but that’s kind of a side point here.)
Our work (mainly work product but also practice) certainly has deep meaning in the utilitarian sense, as defined by its subject matter (civil rights law), audience (judges, lawmakers, the civil rights legal community of practice, and the public), and cultural context (history and current legal, political, and social reality of racial injustice). I don’t know if this is where its artistic meaning lies, though. Our work seems most like an art in its practice, where language is used to communicate ideas, form and structure and thematic development are central elements, and practitioners develop and leverage knowledge and experience gained over many years and apply it according to individual and collective stylistic choices with an eye toward creating a compelling product or performance for the audience.
Do you consider our work to be art?
I will admit that Ryan’s conclusion was what I expected because, whether conscious or not, I do not think Ryan could do something professionally that was not art. I did not have the guts to ask the question to my childhood friend John Jota Leaños, who is a mixed media artist and a Professor of Film & Digital Media at the University of California, Santa Cruz, because I am less sure I would have gotten the answer I wanted.
I want the answer to be yes, because then you get to the second part of the question, which is at least as important to me: if progressive lawyering is art, what does that mean?
I think it means that you approach the work differently and better than if you do not approach the work as art. You are more open to creative solutions. You follow rules but you bend them and make them work for you. Your briefs, opening statements, presentations, et cetera, are better because you are more likely to sweat the details, keep thinking of refinements, seek breakthroughs, strive for the best, see the work as craft.
All of this is magnified in a team environment when each individual is approaching their work in that way, especially when there is a culture in which innovation is encouraged, the best ideas are pursued regardless of who came up with the idea, and people help each other in reaching new heights. Even in a challenging legal and societal environment, this type of legal practice is stimulating, dynamic, and dare I say it, fun.
I recognize that I may be defining art such that many professions could be considered artistic professions. But what is wrong in that?