Law in Contemporary Society

The Lottery Realization

(A revision of Ella Aiken's Recognizing Chance to Become Better Lawyers. Ella's paper is Revision 2; my draft is Revision 3.)

-- -- ScottThurman - 18 Apr 2009 - 18 Apr 2009

What should we do with the idea that we have "won the lottery" - that is, that much of our success is a product of the happenstance of where, when, and to whom we were born? Such a realization can and should impact our legal careers; realizing that we have "won the lottery" can help us to understand our clients, to define our professional responsibilities toward others, and to advocate creatively. But we must scrupulously consider how we let this realization affect our relationships with clients; we must be wary of moving too far into sympathy and, essentially, getting in our own way as advocates.

Lottery Winners and the Rest

When we realize that we have won the lottery - we were born with the right genes, into the right environments -, we see our own efforts, maybe our own being, as arbitrary. We live in a society that, purportedly, rewards the individual for his or her hard work, diligence, effort, studiousness. Yet our admission to Columbia Law, presumably one of the brass rings everyone on the carousel is gunning for, was, in one sense, predetermined at our birth.

  • You're not revising this draft in faithfulness to Ella's plan, evidently. But this sentence is flabbergasting. Admission to Columbia Law School is a brass ring everyone on the carousel was gunning for? Give me a break. It's not a reward, it's a chance to learn.

Whatever our levels of wealth or happiness as children, we all were installed with the skills needed to succeed in the highly artificial world of the university admissions office, the white-collar job interview. Though we may have sharpened and refined that original kernel, we did not create it out of whole cloth in ourselves.

  • I think you meant "instilled," but that wouldn't have been idiomatically used either. I'm surprised that, while writing about the lottery of human destinies, you would talk about your "skills." Your skills, or the capacity to develop them, exist in measures at least as ample as your own in tens or hundreds of millions of children around the world, most of whom will never be able to learn because they are poor. This isn't a lottery of skills you won: your winnings in that lottery were modest. The lottery you won was a lottery for socio-economic place of birth, and there you hit the jackpot.

Consider, for example, the LSAT. We are all very fast to say that it does not measure natural intelligence. And I agree, in so far as I haven't the foggiest what "natural intelligence" is. But surely some people have a natural aptitude to perform well on the LSAT. Or, perhaps more in line with the majority of our experiences, some people have a natural aptitude to be able to prepare for the LSAT, whereas others take the same classes, spend the same time studying, and simply do not improve. The difference is not one of merit; it's one of luck. (Of course, one of the most conspicuous forms of luck is that our ability to do well on the LSAT is related to law school admissions at all; the LSAT appears to be a test that is related to legal studies only circularly, i.e., because it has been chosen as a law school admissions test).

  • I'm sorry, I know I should be patient about this, but I don't think you've quite grasped the concept of the lottery. You seem to think it has something to do with your performance on the LSAT and nothing to do with not being in the half of humanity that must live on the equivalent of a few cents a day.

The lottery realization, at its most dramatic, precipitates a democratic impulse - a sense of commonality, of fraternity. You - my client! - are not so dissimilar from me. We are separated by only a thin membrane of luck; why are our lives so different? Why is someone using the force of the court to compel you to do something? The heart of this sentiment is the unfairness of the lottery, which, for no reason, puts the lawyer on one road, his client on another. The client and the lawyer, like in Robinson's vision of mass metamorphosis, could switch roles. The lottery would not care, so long as the proper proportion was maintained.

The lottery realization might have a more modest effect on a lawyer.

  • How about having a less modest effect on a lawyer, not about causing him to identify with his client, but rather causing him to recognize the powerlessness of most of humanity and the shallowness of his own tendency to put his welfare consistently and unremittingly ahead of the aspirations of those who have nothing?

But either way, it invites lawyers to take serious their roles as advocates for others. Lawyers need clients; indeed, doctrines like standing require that even impact litigators work their social reforms through real people. The lottery realization can create an important advocacy connection between lawyer and client.

Moving Beyond Sympathy: Using the Lottery Recognition

But what is that connection?

It's not enough to say, "But for circumstances, that wretched person - my client! - could be me." Mere sympathy for our clients will not be enough to move us through the difficult emotional and moral challenges of our careers, because sympathy is inherently selfish. When we sympathize with a client, we place ourselves, imaginatively, in her position. But we do not necessarily need to understand our client, or even really acknowledge her as a person, to sympathize. Sympathy is an imaginative act largely concerned with ourselves.

  • Depends on how we're doing at cultivating mirror neurons and overcoming narcissism.

When we sympathize, we determine how we'd feel if we had our client's problems. Our pain is placed at the center of this imaginative act, not our client's. And only if we find that we could not handle that pain, only if we feel sorry for ourselves, can sympathy motivate us.

  • Are you sure about these assertions? Might they be idiosyncratic? Might you be using "sympathy" in a fashion that isn't standard?

The lottery realization does push us to think about our commonality with our clients. But for luck, but for social forces, we might have been our clients. Those social forces, however, have made all the difference. We cannot ignore them or overlook them, and instead attempt to advocate based upon pity for our imagined selves.

  • But for luck, you wouldn't be your clients, because but for luck, you'd be living at subsistence in a slum in some Asian city or a rice paddy in rural China. Is that actually an idea you've never had?

Instead of sympathy, lawyers should use the lottery realization to employ greater empathy - an analytical, not emotional, imaginative act that would challenge lawyers to understand fully their clients. Empathy would encourage lawyers at first to build upon the lottery realization a sense of commonness with the client - the bridge initially needed to cross the gap between two different (separate) people. But, beyond that, empathy would compel the lawyer to fully, holistically explore the identity and, interconnectedly, the problems of the client. We need to determine as wholly as possible what solutions (the outcome desired at trial and, more grandly, the social reforms) are necessary for our client. By removing our own egos from the situation, we can better determine how to rearrange or to eradicate the mechanisms of society that create lotteries with such stark results.

  • I appreciate very much the suggestion to remove ego from the analysis of the client's problems. But as a revision of Ella's draft, I would not say that this is an attempt to get ego out of the picture.


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r5 - 08 Jan 2010 - 22:28:14 - IanSullivan
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