Prof. Tamar Birckhead Offers Insight on "A Civil Action"

It's my pleasure to join the conversation that Dean Boger recently started exploring Jonathan Harr's "A Civil Action." Although I read it long ago, I welcomed the opportunity to read it again, as my perspective on the story has shifted after many years of practice. I graduated from law school 21 years ago, and, aside from a year clerking for a judge on the Massachusetts Appeals Court, I've spent the intervening years practicing criminal defense -- a decade representing indigent adult defendants as a public defender in the state and federal courts of Massachusetts and the past nine years representing kids in the juvenile delinquency courts of North Carolina as a faculty supervisor for the UNC Juvenile Justice Clinic.

My third-year law students represent children who are 15 years old or younger who are charged with criminal offenses that are typically the result of minor misconduct at school or in their neighborhoods. The students travel to the homes of their young clients to interview them about their lives and to gather information in order to investigate the pending charges. They speak with parents and guardians, visit middle and high schools to talk with teachers and review school records, and do legal research in order to file and argue motions and advise their clients as to how best to resolve the case.

We emphasize holistic representation in the clinic -- not merely defending against the criminal charges that our clients must confront but addressing the broader forces at work that are acting as stressors in their lives. We don't always win, but at the very least our clients experience what it's like to have someone working hard on their behalf -- we don't make decisions based upon what we believe is in our client's "best interest," but pursue what the young person conveys as their own or "expressed" interest.

I've thought about the work of my students as I've reread "A Civil Action," how the lessons they are learning are not that different or removed from those with which Jan Schlichtmann and his colleagues struggled. The themes that most resonate with me are interrelated:

• What is the purpose of the litigation process? Is it, as Professor Nesson asserted, "a morality play watched by a public audience?" Is it to seek the "truth?" If so, is this possible within the confines of jury trials, or does the adversary process only obscure reality? In other words, does the truth inevitably remain -- regardless of the verdict or the details of the settlement -- "at the bottom of a bottomless pit," as Attorney Facher claimed? In the "enclosed, ritualistic world of the courtroom," as Jonathan Harr wrote, is "reality often a mere shadowland?" If so, what if anything can/should be done structurally to change the system?
• What is the lawyer's duty to her clients? Schlichtmann told the Woburn plaintiffs, "I'm representing you, not controlling you." Yet, is this an accurate estimation of his role vis-a-vis the families? Did he involve them enough in the decision-making process or was he patronizing and self-serving, as one of his clients, Anne Anderson, ultimately felt? Is this relevant or is the bottom line -- the amount of money the plaintiffs are awarded -- the only truly important factor in litigation of this nature? If you had been in Schlichtmann's shoes, how might you have handled the attorney-client relationship? What do you feel he did well? What could he have done better?
• When deciding upon the area of law to practice, need it be a choice between riches and fame OR doing good, as Schlichtmann reflected during settlement negotiations? As a member of the legal profession, is it possible to achieve both fame and fortune as well as to benefit society? What does it mean to serve the "public interest?" Is this a duty shared by every member of the bar? Can this be done via pro bono service? If so, what type interests you most?

I hope these observations and questions help generate some thoughts of your own. If so, please share them in the comments below and/or via Twitter (#unclawbookclub) and Facebook. I look forward to writing more in several days and to engaging in further conversation with you.