What I’m Looking For

In Professional Responsibility, we just covered Model Rule 3.4(e), which states in part, “A lawyer shall not . . . in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused . . .” I actually make it a point to mention this Rule in virtually every course I teach. I do so to counteract the common tendency among not only students but the general public to preface statements and arguments with, “I believe” or “I feel,” or as if it became more persuasive, “I strongly believe,” or “I really feel.”

Although there are some contexts in which it matters that I in particular, rather than someone else, hold a specific belief, such as if I have a role that makes me more authoritative or we have a personal relationship; or that I wish to express a feeling with special passion, as in cumulative voting systems, my identity is and should be regarded as by and large irrelevant. Indeed, to the extent decisions are made because of who I am or the emotion I display, that likely is improper or ill-advised. Nonetheless, students seem to prefer to frame their assertions as personal opinions, because they accept the fallacy that if every individual has a right to articulate a view it follows that all of us have equally meritorious views. So I try to show students that their insertion of the first person is appropriate only if it is a factor that is properly considered, as part of the project of instilling awareness about effective advocacy in general. Once you do a role play showing what a lawyer sounds like in court insisting, on a motion to dismiss, “But, your Honor, I should prevail because I genuinely believe in my position,” it becomes apparent how unproductive such reasoning is in practice.

Similarly, I disabuse students of their interest in asking “What are you looking for” on paper assignments or final exams. I explain that what I most desire is a new motorcycle, in order to show them that it would be wrong for them to try to cater to my whim. And just as it is obvious it would be improper for them to give me what I want, or for me to demand it for that matter, if that object is a new motorcycle, so too it is improper for me to say that I am a liberal or a conservative, and I want them to cater to my ideology. Instead, I ask them to consider what would be objectively better (while doubting the very possibility of a single standard adequately expressing shared values), or what would impress a consensus among experts, or to set a goal that is worthwhile irrespective of my position behind the podium – they seem to respond best to the goal of writing for a reader such as a spouse or partner, producing an essay that would prompt that person, whom they respect, to say, “This was interesting and offered insights into what it is you are studying.” It is troubling, however, that so many – almost all – students accept, without any criticism, the proposition that the teacher should be allowed to tell students what he is “looking for” and they should be expected to produce that.

Yet I wonder if this effort, which is futile in any event, reflects the worst aspect of legal education. In the first year and throughout the curriculum, faculty systematically trains students out of their sense of justice and context, substituting technical skills of doctrinal analysis. The model of a lawyer who will take any client, setting aside her own beliefs about what constitutes a just cause, itself expresses an ethical sensibility that may be problematic. Perhaps, ironically, my emphasis of the need to remove one’s ego in public discourse is a personal idiosyncrasy.

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5 Responses

  1. Dave says:

    The post directly below this one details the Geo. L. J.’s current articles. I thought this little gem from Judge Posner illustrates nicely that it is not just students that fall victim to the “I feel” trap:

    “If ninety-nine percent of all the books and articles that have been written about constitutional law, including those written in 2007, were pulped, there would be a net social gain from just the saving in the cost of storage. Think of the hundreds of articles written about Roe v. Wade and the other Supreme Court abortion cases: have any of these articles the slightest significance beyond registering their authors’ convictions about the emotional subject of abortion?”

    Richard A. Posner, The State of Legal Scholarship Today: A Comment on Schlag, 97 GEO. L. J. 845, 853 (2009).

  2. John Steele says:

    I agree with the previous poster, who suggests that perhaps what you’re teaching the students is to disguise their beliefs rather than to suppress them. When it comes to espousing the client’s beliefs, there may be some suppression. Daniel Markovits’s new book deals with that — a phenomenon he terms “betrayal.”


  3. A.W. says:

    I think every regulation of the legal profession should be written with an eye toward the fact that all of them are a restriction on freedom of speech. Which is not to say no regulation is justified, but it needs to be… narrowly tailored. How on earth does it pass that test?

    The personal knowledge thing is one thing. if you are not going to subject yourself to cross examination, then don’t be a witness. but if a gay lawyer gets up and defends gay marriage, what exctly is the harm in him saying, as a gay man, i believe this is the right thing to do, um, what is the harm?

  4. Interesting, and I’m going to start listening more closely for this problem from my students. I tend to hear it more from law students and brand-new lawyers.

    Another way to think about this teaching issue is to treat it as a more objective, syntactical challenge. It is a habit to use the construction, “I feel…”, just as it is habit to ask “Did you..” questions, which have their own pitfalls. We do it all the time in everyday conversation. Habits can be broken and new habits learned. The goal is get them to form new grammatical habits, thinking syntactically as well as tactically and strategically. It doesn’t come naturally. The cognitive multitasking never ends!

  5. AF says:

    As I understand Model Rule 3.4(e), it doesn’t ban the pronoun “I,” but rather bans improper arguments that are based on personal opinions rather legally relevant considerations.

    Thus, a lawyer cannot say “I believe my client is innocent” but can say “I believe the evidence is insufficient to prove my client guilty beyond a reasonable doubt.”