Reel World Lawyering

By William Domnarski
This article appears on Page 4

      "Michael Clayton" is a great film that has extra meaning for lawyers, but not because more than a few lawyers (yes, I'm raising my hand) think that George Clooney would be the ideal choice to play them in the movies of their careers. No, the movie's extra meaning comes in prompting us to confront established ideas of what the great lawyer is and, really, what lawyering is all about.
      The film, about which I can assume familiarity, follows the killer litigator of a large Manhattan firm representing a huge agro-chemical corporate giant indifferent to the death it is visiting upon those touched by its product. For this killer lawyer, though, the center cannot hold and things within him and around him fall apart. Following an epiphany of moral responsibility, he turns on his own client, but of course, as true killers, the corporate giant silences him, while Clooney's character witnesses and then acts, following his own epiphany, on what he has seen.
      Our killer lawyer deserves his description because he is myopic and ruthless. He's hired because he looks not to what the client has done but how he can keep the world from finding out about it. The killer litigator earns his high fee because he has no interest in the truth. For him, the truth is just something that can be manipulated.
      Killer lawyers are not lacking in self-esteem, which helps explain the shelf of celebrity lawyer autobiography. Not surprisingly, they revel in their image as litigating killers and present frightening distortions of the professional life distorted. Professions demand the adherence to rules, limitations. But these celebrity lawyers are bigger than the profession. They make their own rules, and if they get caught breaking the established ones, then someone is out to get them. All is justified in the pursuit of their cause - themselves.
      While the public might buy the act of the celebrity lawyers, we in the profession know that being a great lawyer does not have much to do with having the litigator's killer instinct, whatever that really is. Great lawyering is more than bluster, more than self-promotion. At a minimum, the great lawyer has to be connected to the law itself. It's not massive amounts of law that matters here; it's knowing how to get the law and just what law needs to be gotten. Law is at the core of it all.
      Added to the foundation of legal knowledge is the core trait of being a good counselor. A great lawyer tells his client that he or she has a bad case when it's true. It's hard in our modern market for lawyers to think of the client's interests before the interests of the firm, but there it is, the great lawyer has as his or her overriding concern the best interests of the client. At least half the time the great lawyer will be telling the client to put the checkbook away. Lincoln is where we go first for this lesson - discourage litigation, he said.
      The great lawyers take the world as it is and sell their perceptive analyses of what they see. Celebrity lawyers, in contrast, boast of being able to turn white black and black white, but we all know the world cannot be changed. Unless the lawyer wants to go outside the process, the facts determine the case, not the lawyer the facts. Any lawyer who seeks to sell the client he has the ability to change what is there is really nothing more than a used car salesman. Not surprisingly, Gerry Spence, one of those celebrity lawyers, once wrote that the law should look to used car salesmen to find the best lawyers.
      Which brings us back to "Michael Clayton." The real meaning of the movie for lawyers is that, though he is disparaged by everyone in the film, including himself, Clooney's character - the self-described janitor and fixer - displays pretty impressive lawyering skills. They might be skills unrecognized by the lawyers whose real talent is in running the firm, but at every turn - with the exception of the failed restaurant business venture with his brother - he shows good judgment. He looks to what is and gives withering advice because it confronts rather than avoids the operative facts. To his credit, by movie's end he has been able to look at himself with the mature, realistic assessing eye that gets so many people out of so many fixes.
      There are several masterful scenes in the film. The early scene with the firm's client who has left the scene of an accident demonstrates that Clooney's approach - to minimize the damage rather than argue that the damage isn't really there - puts the audience on notice as to the force of Clooney's ability to assess a situation and know what is best for the client. It might not be what the client wants to hear, and it might take strength of will to withstand the client's petulant fury, but delivering the truth helps the client the most. The best line of the movie, I would submit, is when Clooney's states flatly, "It's what it is."
      There's more to great lawyering, of course. For me, the great lawyer has to be supremely competent with the language, whether writing or speaking. The great lawyer has to be widely read and receptive to ideas, always moving to where the best vantage point of reality can be found. The great lawyer is a thinker, a writer, a legal mind, but above all the great lawyer is a realist, seeing the world for what it is and helping clients see the world as it is, not as they want it to be.
      None of this is surprising. The easiest test for determining a great lawyer is to ask yourself what you would want out of a lawyer if you needed one. Unless you are trying to inflict pain on an opponent, what you want primarily is a wise voice to help you figure something out. Think of the lawyers in film who have moved you the most. Atticus Finch of "To Kill a Mockingbird" has impressed many people the most because of his wisdom rooted in an understanding of the world and human nature. On the small screen, would anyone want to be represented by "Boston Legal's" Alan Shore if Perry Mason were available? What we recognize in these fictional characters are their wonderful human traits, which leads us to the final answer. A great lawyer has to be a good person. Litigating killers need not apply.
     
      William Domnarski practices criminal defense in federal court and is based in Riverside. His new book on federal judges will be published by Oxford later this year.