“What is true, and has turned out to be fatal for [the client] – though it should not have been – is that his lawyer was lackluster.”[1]
Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit (now retired), blasted lackluster lawyering and what he called a weak immigration bar in his dissent in a March 4, 2015 decision where the majority upheld the deportation order of an Algerian immigrant who was accused of entering into a fraudulent marriage with a U.S. citizen. Judge Posner went on to say that “[t]here are some first-rate immigration lawyers, especially at law schools that have clinical programs in immigration law, but on the whole the bar that defends immigrants in deportation proceedings … is weak.”[2]
Whether one agrees with his views or not, Judge Posner, one of the most recognizable and influential judges in American society, has articulated a phenomenon that applies not only in the context of immigration law but in the context of criminal law, civil rights, employment discrimination, and virtually every field of law imaginable. And that phenomenon is this: one where lackluster lawyering costs a society its progress, a community its repair, a family its unity, and a client his or her life or well-being.
As Judge Posner so eloquently counters, the phenomenon of lackluster lawyering “will not trouble judges so enamored of the adversary system in its pristine purity that they do not blanch when an imbalance in the skills of the adversaries’ lawyers produces an unjust result… [but] it’s not as if Bouras, deported to Algeria, will be in a position to sue his American lawyer for malpractice.”[3] As much as lovers of the rule of law would like to think, the system of justice currently in place will not always sort itself out. Not every aggrieved client and victim of lackluster lawyering can afford to bring a successful malpractice claim and even if they could, the damage already done may be irreversible and un-compensable. This article in no way advances the unfair theory that every outcome of every case is dependent exclusively upon a lawyer’s preparation and performance.
Rather, there are a variety of factors in the legal system (and human nature) that may cause a lawyer to lose his or her case even if they presented the most compelling case possible, including:
- personal bias in the mind of the decision-maker (whether conscious or unconscious),
- the political and social climate surrounding the issue being litigated, and
- overly broad or unduly narrow constructed laws that choke or inflate available avenues of rule interpretation.
However, this article does advance the theory that combating the lackluster lawyering phenomenon starts now, with law students, before even becoming licensed attorneys. Judge Posner mentioned law school immigration clinics as one way to improve the immigration bar and lackluster lawyering in immigration law (and, in reality, any type of law), but there are other ways law students can improve their advocacy skills even without the “student attorney” designation. These include pro bono opportunities arranged through school pro bono and public interest offices or local bar associations, or internships or externships at nonprofit organizations or government agencies. Or, advocacy opportunities initiated at a student’s own initiative. Many of the influences affecting our current system of justice, including bias in judicial decision-making and the social climate surrounding certain issues, cannot be fixed with purely legal solutions. In fact, it may be considered a form of lackluster lawyering for an advocate to think the answer lies solely in law already on the books and not also in policy yet to be made.
Thus, lawyers should be always be perched to suggest innovative alternative ways to achieve a client’s goal, and that sort of thinking should start well before sitting for the bar exam.
As Judge Posner noted, the need for a competent and compassionate attorney is especially higher for clients who are unable to afford quality representation. Access to quality legal representation is a social justice cause in itself, encroached in advocating for everything from changes in racial profiling and mandatory minimum sentences to assisting unaccompanied minors and marginalized socioeconomic groups. Indeed, law students should take a stand even before they take the bar to prevent lackluster lawyering in cases involving society’s most disenfranchised and vulnerable populations.
[1] Bouras v. Holder, No. 14-2179, 2015 WL 912947, at *16 (7th Cir. Mar. 4, 2015). One of the reasons the lawyer was considered “lackluster” was because he failed to request a continuance from the immigration judge before the end of the hearing although he was notified five days earlier that the key witness, the client’s ex-wife, would be unable to testify because of work obligations. The lawyer also failed to suggest an alternative form of testimony, such as teleconferencing. The judge denied the last-minute request for a continuance and the ex-wife’s key testimony was never presented, leading to the deportation order of Bouras.
[2] Id.
[3] Id.
A version of this article was originally published in The Nota Bene Spring 2015 issue.
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