To the lawyers of Texas

I’m going to address a few other objections to the one day only November 17th lawyer strike idea (directed at Sharon Keller) that I haven’t specifically dealt with before.  The conclusion I come to (YMMV) is that while many of them have merit, the potential for accomplishing something significant is there, and the timing argues strongly in favor of going forward.

From Grits for Breakfast:

“Strikes require disciplined organization and blogging is an endeavor that at best generates only weak connections among people.”

“Disciplined organization” is a term that can never apply to real lawyers.  They are too independent, too opinionated, too disagreeable, and by their very nature cannot be herded.  “Weak connections among people” may not be associated with successful striking in other contexts, but with real lawyers it’s the best you can hope for.  If that’s not enough then any attempt at lawyer strikes is doomed to failure, but I’m not going to accept that without trying.  And it’s an open question, since no one has tried before.

“Further, blogs are not an effective vehicle to promote this tactic…Blogs are frequented by people who are actively seeking out information, which is a small subset of folks: Their audience is made up of opinion leaders, not the “masses.””

This is precisely why a blog like this could work, at least in theory.  The target audience is opinion leaders, people who have an informed interest already, the real lawyers of Texas.  Not “the masses”.

And speaking of “opinion leaders”, from Bennett:

[If Atticus Ignavus’s idea were a good one, it would still need a leader to make it happen. In fact, it’s a stupid idea (legally and ethically as well as politically).]

Legally stupid?  I know of no law that specifically prohibits a lawyers’ strike.  Perhaps Bennett does, but he’s not telling.

Of course there are many more generalized laws that could be used to harass or intimidate striking lawyers:  the court’s contempt powers, “obstructing” laws of various kinds.  The likelihood that any of them would be employed because of a one day show of strength is very remote, although you never know.  I can’t eliminate risks.  They have to be balanced against what is to be gained.  I think the potential gain far outweighs the risk, Bennett thinks the opposite.  That doesn’t make either position “stupid”.  Neither one of us is demonstrably right or wrong unless the attempt is made.

Ethically stupid?  Striking is perfectly ethically defensible under, among other things, EC 8-1.  That doesn’t mean there aren’t countervailing ethical problems with respect to client duties, but frankly the idea that any serious consequences to clients would occur over a one day event seems fanciful.  One day adjournments routinely occur for lots of reasons, often simply for the convenience of the court.  Exceptions could cover any hard cases.  Overall, claiming that ethical considerations clearly cut against a one day strike is not a reasonable position.

Politically stupid?  The political fallout concerns me, but it’s not clear cut.  Maybe a lawyers’ strike will favor Keller, maybe it will damage her.  It will have to be attempted to find out.  What is known, however, is that she has won election twice and presumptively will win again unless something changes.  Can she make hay about “trial lawyers” who have opposed her?  Sure.  She can do that whether there’s a strike or not.  It’s often a winning formula, precisely because the image of trial lawyers is that they never act on principle, an image that would be at least somewhat undercut by a strike for this reason at this time.

And maybe there needs to be a “leader” here, but the internet has been home to a few – perhaps anomalous or isolated – but at least a few more or less “leaderless” mass events, like Ron Paul’s money bomb.

That aside Bennett is, I have to say, irrationally fixated on the anonymity thing.  It is not fundamentally important.  Anonymity on the internet is very fragile in any event.  If there is a successful lawyer’s strike in Texas on November 17th that is in any way connected to this blog, my fleeting anonymity will promptly vanish whether I consent or not.

In the meantime, there isn’t time to hash out any issues about me anyway.

I have tried over the last few posts to deal with the issues underlying, and in my view ultimately justifying this effort.  Here I described the lamentable but prevalent inefficacy of reasoned discourse and argument in American courts.  Here and here I tried to show that the failure of reason in the courts works to the benefit of the government and the detriment of individuals and their lawyers such that the deck is hopelessly stacked against you.  Here I tried to show how ineffective real lawyers have been politically and suggested it’s time to try something, maybe anything within reason, to change that.

This is a potentially effective and non-violent answer to Sharon Keller’s self proclaimed “win”.  The timing of this opportunity is now.  In the primitive terms to which the justice system has been reduced, you have been hit, and you have a limited window of opportunity to hit back.

I suggest you take it on November 17th.  I have provided, gratis, the idea and this blog.  The rest is up to you.  You can cyber congregate here with comments, bounce ideas and concerns off one another with as much anonymity as the forum can offer.

There has been no alternative proposal for lawyers to effectively make their own professional protest.  An effective one is overdue, and not just in Texas.  But today, the ball is in Texas’ court.

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