Boston Legal Class ExerciseBoston Legal Class Exercise

Selene MizeSelene Mize

Faculty of Law, University of OtagoFaculty of Law, University of Otago

NIFTEPNIFTEP

6 November 20096 November 2009

The ExerciseThe Exercise

Underlying caseUnderlying case LawyersLawyers Watch clips Watch clips Jot down one or two sentences for each of the Jot down one or two sentences for each of the

following questions:following questions: Would you crush a close friend to win a lawsuit?Would you crush a close friend to win a lawsuit? In a nutshell, what is the nature of the relationship In a nutshell, what is the nature of the relationship

between a lawyer and client?between a lawyer and client? What does it take to be an ethical lawyer?What does it take to be an ethical lawyer? (There is no one right answer.)(There is no one right answer.)

Would You Crush a Friend to Would You Crush a Friend to Win a Lawsuit?Win a Lawsuit?

Thoughts?Thoughts?

Former StudentsFormer Students

49% said no or probably not49% said no or probably not 24% said maybe, it depends, or I hope 24% said maybe, it depends, or I hope

notnot 24% said yes, probably, or if the 24% said yes, probably, or if the

situation required itsituation required it 3% did not answer or didn’t know3% did not answer or didn’t know

Those Saying YesThose Saying Yes

Protection of the clientProtection of the client ““You take an oath to defend your client, not be kind to You take an oath to defend your client, not be kind to

your friends”your friends” ““I would do what is best for my client”I would do what is best for my client” ““The client takes priority”The client takes priority”

Role differentiated moralityRole differentiated morality ““Friendship and work should be separated, so yes”Friendship and work should be separated, so yes” ““Personal relationships should not affect how you do Personal relationships should not affect how you do

your duty and job as a lawyer”your duty and job as a lawyer” ““It’s just business”It’s just business”

Some were vehementSome were vehement ““Damn right!” Damn right!” ““Hell yes!”Hell yes!”

Some were reluctant, Some were reluctant, ““It would be difficult and I would be more to It would be difficult and I would be more to

mediate as much as possible first but I mediate as much as possible first but I suppose if the job requires you to win a case - suppose if the job requires you to win a case - that’s what I would try to do”that’s what I would try to do”

““If there were no alternatives”If there were no alternatives”

Reciprocity was often mentionedReciprocity was often mentioned ““Yes, I’d expect the same of them”Yes, I’d expect the same of them” ““Hopefully my friend would do the same to Hopefully my friend would do the same to

me”me” Guilt tooGuilt too

““Maybe, but feel bad afterwards”Maybe, but feel bad afterwards”

Those Saying Maybe or It Those Saying Maybe or It DependsDepends

Situational factors (disliked by many Situational factors (disliked by many philosophers, in fact powerful philosophers, in fact powerful determinants)determinants) ““If the case were important enough”If the case were important enough” ““That would ultimately on how important the That would ultimately on how important the

outcome of the case would be to my client vs outcome of the case would be to my client vs how bad my friend would feel. Some things how bad my friend would feel. Some things are more important than preserving others’ are more important than preserving others’ feelings.” [Do Jerry’s interests weigh equally feelings.” [Do Jerry’s interests weigh equally with the client’s?]with the client’s?]

Distinguishing between crushing the friend in legal Distinguishing between crushing the friend in legal and personal waysand personal ways ““That is not law”That is not law” ““Not in the unprofessional and completely irrelevant Not in the unprofessional and completely irrelevant

way on the clip”way on the clip” ““Yes but within limits, professionally”Yes but within limits, professionally”

EquivocalEquivocal ““Hopefully not, but possibly yes”Hopefully not, but possibly yes” ““I don’t know but I would like to say no”I don’t know but I would like to say no” [Here we often discuss difficulties in predicting [Here we often discuss difficulties in predicting

behaviour, and the influence of pressure on decision-behaviour, and the influence of pressure on decision-making]making]

Those Saying NoThose Saying No

““NO! One of the greatest fears I have in NO! One of the greatest fears I have in entering the legal system is that I may entering the legal system is that I may have to compromise my values and have to compromise my values and integrity. This goes against everything I integrity. This goes against everything I have been taught and everything I have been taught and everything I believe.”believe.”

““No, you wouldn’t try and crush No, you wouldn’t try and crush anyoneanyone” ” [deontological][deontological]

““Friendship is too important”Friendship is too important”

““It is dirty and immoral”It is dirty and immoral” ““It is not really legal argument”It is not really legal argument” ““The purpose of every lawsuit is to The purpose of every lawsuit is to

determine truth in a respectful manner for determine truth in a respectful manner for both parties”both parties”

““No, but don’t tell my clients!”No, but don’t tell my clients!” ““What goes around comes around” What goes around comes around”

[pragmatic vs ethical reasoning][pragmatic vs ethical reasoning]

One person wrote “yes” then crossed it out One person wrote “yes” then crossed it out and wrote “depends” then crossed it out and wrote “depends” then crossed it out and wrote “no”. I praise the reflection at and wrote “no”. I praise the reflection at work in this answer.work in this answer.

Why I Use this ExerciseWhy I Use this Exercise

By making students turn in the form, they become By making students turn in the form, they become actively involved, rather than remaining solely actively involved, rather than remaining solely passive observers in class (ideally, setting a trend passive observers in class (ideally, setting a trend for the rest of the semester)for the rest of the semester)

Doing it on the first day of class, student Doing it on the first day of class, student motivation is usually very high motivation is usually very high Curiosity about a new subjectCuriosity about a new subject Assignments and exam prep not yet making conflicting Assignments and exam prep not yet making conflicting

demands on timedemands on time At the start of the semester, students can’t easily At the start of the semester, students can’t easily

guess my own views, and try to feed back what guess my own views, and try to feed back what they think I want to hear they think I want to hear

It introduces the role of lawyers -- a It introduces the role of lawyers -- a subject we will return to at several points subject we will return to at several points during the semesterduring the semester

The Relationship Between The Relationship Between Lawyers and ClientsLawyers and Clients

What is the essence of a lawyer’s job?What is the essence of a lawyer’s job? To help the client achieve his or her aimsTo help the client achieve his or her aims Ensure the process runs correctlyEnsure the process runs correctly ??????

What Does it Take to Be an What Does it Take to Be an Ethical Lawyer?Ethical Lawyer?

Student answers often mention: Student answers often mention: PhilosophyPhilosophy Personal moralityPersonal morality Role-differentiated moralityRole-differentiated morality Situational factorsSituational factors Care for othersCare for others

I Tell Students:I Tell Students: Some people determine their ethics from an Some people determine their ethics from an

outside source (eg religion)outside source (eg religion) Some model themselves on a role model’s Some model themselves on a role model’s

character or actionscharacter or actions Some start from an overall philosophy, and Some start from an overall philosophy, and

move to the specific applicationsmove to the specific applications Some introspect and reach decisions for Some introspect and reach decisions for

specific situations, and leave grand specific situations, and leave grand philosophies for later (or never)philosophies for later (or never)

There are lots of ways, all justifiable, to reach There are lots of ways, all justifiable, to reach one’s personal sense of ethics (and it doesn’t one’s personal sense of ethics (and it doesn’t happen overnight)happen overnight)

Ultimately, defining morality is a personal matter. Ultimately, defining morality is a personal matter. You are morally and legally responsible for your You are morally and legally responsible for your own behaviour. Ethics is about having integrity own behaviour. Ethics is about having integrity (making consistent principled decisions which (making consistent principled decisions which are consistent with are consistent with youryour values) and being proud values) and being proud of your own actions. You may be of your own actions. You may be persuadedpersuaded by by others, but you should not refuse to make your others, but you should not refuse to make your own ethical judgments.own ethical judgments.