Speaking truth to power: the language of civil rights litigators.

AuthorEastman, Herbert A.

CONTENTS

  1. CRIES TO HEAVEN, A CRITIQUE 765 A. Hattie's Story 765 B. Speaking Is What We Do: The Importance of Complaints 768 C. Dueling Descriptions 773 1. Cairo: Kendrick v. Moss 773 2. Attica: Inmates of Attica Correctional Facility v. Rockefeller 777 3. Willowbrook: New York State Association for Retarded Children v. Rockefeller 782 4. The Point So Far 788 D. Partial Explanations: Constraints on Thicker Pleading 789 1. Signs, Signs, Everywhere Are Signs: The Constraints of Pleading Rules 790 2. All the Other Guys Are Doing It: The Constraints of Professional Standards of Practice 792 3. My Parents Were Too Poor To Buy Us a Real Dog: The Constraints of Legal Education 792 4. It's Not Our Job: The Constraints of Professional Roles 795 5. It's a Black Thing: The Constraints of Culture 797 6. It's Lonely at the Top: The Constraints of Hierarchy 798 7. One Word Is Worth a Thousand Pictures: The Constraints of Language 799 8. This Is a Hard Hat Area: The Constraints of Self-Preservation 801 E. The Need for Change 805 II. SUGGESTIONS FOR THICKER PLEADING 808 A. The Possibilities for Change 808 B. Dramedy 810 C. Client Narrative 811 D. Metaphor 814 E. Irony 819 F. Poetry 822 G. Homilies 823 H. Oxymorons 825 I. The Free Word 827 J. The Lawyer's Own Voice 829 K. Jazz 831 III. RHETORIC IF NOT TRANSLATION: A NEW CAIRO COMPLAINT 833 IV. THE FRUITS OF CHANGE 850 A. Art 855 B. Integrity 855 C. Fidelity 856 D. Honesty 856 E. Competence 857 F. Professionalism 858 G. Civility 859 H. Education 860 I. Peace of Mind 861 V. LITERARY PLEADING 862 APPENDIX: THE ORIGINAL CAIRO COMPLAINT 865

  2. CRIES TO HEAVEN, A CRITIQUE

    A friend of mine, a public interest lawyer, says, "Give me strawman plaintiffs. Real clients are such a pain." Yet that is how justice comes in the world, not through you the lawyer, but through crazy people, dybbuks, who briefly take possession of you.(1)

    Thomas Geoghegan

    The clearness of your statements, Mr. Licoln; the unanswerable style of your reasoning, and especially your illustrations ... were romance and pathos, and fun and logic and welded together. That story about the snakes, for example ... was at once queer and comical, and tragic and argumentative. It broke through all the barriers of a man's previous opinions and prejudices at a crash, and blew up the very citadel of his false theories before he could know what had hurt him.(2)

    Rev. J.P. Gulliver

    Art Spiegelman(3)

    1. Hattie's Story

      I once had a client named Hattie Kendrick. She was a woman and an African-American, a school teacher and a civil rights warrior, spit upon, arrested, and tossed out of restaurants and clothing stores that did not "cater to the colored trade." She marched and spoke out for integration and against oppression. Her school fired her, but not before she had taught generations of black children in Cairo, Illinois, that participation in American democracy was their right and their duty. In the 1940's, she sued to win equal pay for black teachers, with Thurgood Marshall as her lawyer. And in the 1970's, she was a named plaintiff in a class action asserting the voting rights of black citizens in Cairo against a city electoral system rigged to reduce the value of their votes to nothingness. All she wanted was to cast a meaningful vote in a democratic election before she died--she was in her nineties, growing blind and weak. Such a woman. Such a story. And such a voice. Listen to how she discerns the problems of her town: "'Too long have the two races stood grinning in each other's faces, while they carry the fires of resentment and hate in their hearts, and with their hands hid behind their backs they carry the unsheathed sword.'"(4) Yet here is how the complaint filed in federal court identifies the named plaintiffs, including Hattie Kendrick: "All plaintiffs are Blacks, citizens of the United States and of the State of Illinois, and residents of Cairo, Illinois registered to vote in Municipal Elections conducted in Cairo."(5)

      This Article springs from the recurring disappointment and frustration I have felt after consultation with clients in cases presenting outrages that, in a phrase loved by my mother, cried out to heaven. I have represented and continue to represent these clients in civil rights cases, broadly defined. These are my clients: a young woman, sexually abused as a child, forced to undergo unjustified strip searches that aroused the nightmares of her childhood. A black laborer finding his lunch in the toilet and racist threats in his locker. A gay man staring death from AIDS in the face and denied the only available treatment because of bureaucratic indifference and homophobia. A recovering drug addict holding his addiction at bay with the support of a group home, yet in jeopardy of losing that home when fearful neighbors complained to a cowardly city government.

      My frustration and disappointment began when I reviewed the pleadings I drafted for them. I could barely see over the chasm separating what those clients told me about their lives and what I wrote to the court as factual allegations in the complaint--sterile recitations of dates and events that lost so much in the translation. What is lost in a description that identifies a woman like Hattie only as a registered voter? Details, of course. Passion, certainly, but more than that. We lose the identity of the person harmed, the story of her life. But even more is lost. This was a class action aimed at remedying a systemic problem harming thousands, over generations. The complaint omits the social chemistry underneath the events normally invisible to the law--events that create the injury or compound it. In this complaint, we lose the fullness of the harm done, the scale of the deprivations, the humiliation of the plaintiff class members, the damage to greater society, the significance of it all.

      The complaint omits the frustration of the democratic process and the powerful metaphors that claim an exception to the rules restricting the court's involvement. The complaint leaves intact the walls between the clients and the court, the clients and the lawyer. In a strange way, it even effaces the lawyer by denying her the dynamic and creative role of responding to the tragedy witnessed.

      I wondered how we, as lawyers, could plead the horror of wrong done on a mass scale. In reviewing the pleadings in other famous civil rights class actions, I found similar failings. This Article explores why we fail and wonders whether we can do better.

      To begin with, this Article demonstrates our failure by comparing lawyer's pleadings with the reality of clients' situations as described by journalists and historians. Much is lost by words alone, by the words of journalists and historians no less than those of lawyers.(6) But with their losses and omissions, these contrasting descriptions will prove useful in my analysis. As Stanley Fish argues, all we have of "what really happened" is a collection of competing descriptions.(7) The descriptions make visible the extent to which law as a language omits something significant from the reality it purports to portray.(8)

      These contrasts are not merely academic. In this Article, we do not observe the legal interpretations of distant or dead judges' precedent.(9) Rather, we read the work of a lawyer speaking through a complaint to a judge who will then, as part of the interpretive process, engage the lawyer in an ongoing conversation that is begun and framed by the complaint. The conversation ends with a decision, favorable or adverse.

      The very high social stakes and moral imperative of civil rights cases invite literary treatment, in order to present worlds in conflict.(10) In a systemic civil rights lawsuit brought by a class against a governmental or corporate system, the surface of everydayness is ripped open and we inspect the layers underneath. We then find the routine that grinds along, churning out the little injustices, the grinning faces that conceal resentment. The civil rights plaintiff may stand in the courtroom as an equal to her adversary,(11) but she did not enter the courtroom in that condition and may leave with that inequality deepened. An adverse verdict can mean continued oppression, even death.(12)

      But this dramatic quality transcends the civil rights context. Every client has a story that deserves to be told--from the corporate client trying to survive in a harshly competitive climate, to a spouse embroiled in a bitter divorce. While the need to tell a story is present in many different kinds of litigation, the civil rights field is a good place to begin. In Section B of this Part, I explore why the initial pleading before the judge is particularly important in a civil rights lawsuit. In Section C, I examine pleadings in three civil rights cases and identify the lost elements of the stories behind the complaints. Section D offers explanations for the loss but finds none that precludes reintroduction of those lost elements into the stories told by the pleadings. Section E argues that we need to reintroduce them, to change the way we think about pleading. In Part II, I explore the possibilities for change, and then I turn to specific suggestions for that task--from old rhetorical devices to new ones. I demonstrate my method for thicker pleading in Part III by revising a traditional civil rights complaint.(13) Part IV suggests the benefits we would reap from a change in this direction. Finally, Part V proposes that we try.

    2. Speaking Is What We Do: The Importance of Complaints

      Liberty, lives, fortunes often are at stake, and appeals for assistance and mercy rend the air for those who care to hear.... In all questions men are frequently influenced by some statement which, spoken at the eventful time, determines fate.(14)

      Clarence Darrow

      What does it matter? What is wrong with a pleading that simply offers a short and concise statement of the claim, as the rules expect? Why are pleadings so important?

      At one...

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