BY ANDREW KALLOCH
Macbeth, Shakespeare’s epic tragedy, is a story of ambition gone awry. Macbeth’s drive for power, encouraged by the prodding of his wife, leads him inexorably to murder. After slaughtering King Duncan, Macbeth famously declares, “Will all great Neptune’s ocean wash this blood Clean from my hand? No, this my hand will rather The multitudinous seas in incarnadine, Making the green one red.”
By the end of the tragedy, Lady Macbeth, who earlier had chastised her husband for having such a weak heart following the murder, is found washing her hands and muttering to herself, “Here’s the smell of the blood still: all the perfumes of Arabia will not sweeten this little hand.” Their ambition – their drive to succeed and reach the pinnacle of their professional realm – had sullied them beyond repair. No amount of rationalization or equivocation could cure the sins they selfishly committed for the furtherance of no one’s goals but their own.
When I enrolled in Trial Advocacy Workshop this winter, I expected to learn how to “win cases.” After all, I am not na’ve enough to believe that competition and winning are not of paramount importance for trial lawyers, particularly budding trial lawyers from Harvard Law School. However, what I also hoped to gain from the course, and the many wonderful members of the legal world who descended on Cambridge to teach us the ways of the profession, was how to live with one’s self as a trial lawyer – how to be able to look in the mirror at night and not feel the need to wipe the sins of your day job from your hands.
In the midst of days spent learning the intricacies of opening, direct examination, cross examination, and summation, TAW had one evening session dedicated to the ethics of trial lawyering. I entered Ames that night ready to deliberate over the issues which face trial lawyers, but left instead with a disturbing conclusion: trial lawyers have internalized the belief that their undivided loyalty lies with the individual client and that essentially no-holes-barred zealous advocacy is the only ethical manner in which to approach the profession. In other words, lawyers believe their hands are clean.
However, at every turn, we were taught methods that defame the dignity of individuals and symbolize the long-ago discarded stereotypes of yesteryear – and for what? The object was to win the case. That end alone, however, must not be the object of trial lawyers. The object cannot be victory and advocacy at all costs, for the lawyer must acknowledge that his hands are sullied by every subtle inference he seeks to draw, every pernicious stereotype he wishes to exploit. We cannot wash our hands of these sins, just as Macbeth could not cleanse himself with all the waters of the Earth.
For example, one of the most crucial (and seemingly uncontroverted) elements of direct examination taught in TAW is the accreditation of witnesses. The trial lawyer is trained to introduce their witness to the jury in a sympathetic manner – to highlight the witness’ family ties, community service, and even religious devotion. By the end of three weeks, students were coasting through this process like veteran attorneys, but questions remained: is it right, is it good? These questions, made famous by Chief Justice Earl Warren, who would often interject such queries into Supreme Court argument, remained unanswered throughout TAW.
Accreditation may very well make witnesses more credible to juries, and hence, make the trial lawyer more likely to win. But accreditation’s power is also deeply disconcerting; for the inference which the lawyer seeks the jury to make is that a particular witness is more truthful, and hence less likely to commit a crime, as a result of his religious beliefs, family ties, community involvement, and general acquiescence to the norms of society. This strategy may work well when our client is a public servant and a man of faith, but what if our client is an atheistic alcoholic, a radical misogynist, a bigoted homophobe?
More importantly, the strategy, whether applied to the saint or the sinner, transforms the attorney into a mouthpiece for stereotype, rather than focusing the jury’s attention on the credibility of the individual. Indeed, through accreditation, we encourage jurors to identify clients not as complex individuals, but rather a series of labels – father, parishioner, public servant.
At the same time, we tear down the credibility of our opponents by citing decade-old criminal acts carrying minimal penalties. The fact that these convictions are allowed under Federal Rule of Evidence 609 does not justify their use. We cannot wash our hands of the symbolic nature of our acts by using the rules of evidence as a crutch. By citing these convictions we are telling jurors, and society writ large, that individuals who commit crimes are not to be trusted, even if they served their time. In this land of second chances, a conviction should not be a weight around a citizen’s neck for the rest of his life and trial lawyers must not encourage such a conclusion, even if it would help an individual client in the short term.
The concept of zealous advocacy for the individual is simplistic and small. The jokes aside, lawyers, especially those who study at Harvard and schools like it, are given great respect in our society. When we enter the courtroom, we do so not only to advocate on behalf of a client, but also to represent the law and our belief in the idea that before it all men are equal, no matter how decorated or despondent they may be. As Justice Stevens wrote in Bush v. Gore, “It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.”
Moreover, we do not and must not leave our own beliefs about right and wrong at the courthouse door. While it is true that our clients have not sought us out to be saints before the bar or to trade their freedom to soothe our own conflicted conscience, it is equally true that washing our hands of the immoralities of trial advocacy only lends credence to the most cynical view of our profession – that it is full of moral relativists who care less about justice than victory.
Trial Advocacy Workshop has consistently received some of the highest course ratings at Harvard Law School. Spots in the winter term course are coveted, the waiting list is lengthy, and the teaching staff provides feedback which is undoubtedly of the highest quality. However, my advice for those who may consider taking the course is simple: if you are seeking a class that will enable you to win more trials, this course is for you. But if you are seeking to fulfill yourself as a person and not merely a lawyer; if you seek spiritual and moral clarity in the profession to which you have offered yourself as a servant; if you seek success not only in the end you achieve but the process through which you achieve it, look beyond the course ratings and find a class that will not leave you wondering whether a life of lawyering will leave stains that can never be erased.
Andrew L. Kalloch is a 2L.
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