A. My Questions About Justice and the Practice of Law
Justice. An important concept. “Justice is the first virtue of social institutions, as truth is of systems of thought.” (J Rawls, A Theory of Justice (Oxford Paperbacks, p. 3.) (Harvard University Press. Kindle Edition.)) And justice is what our legal system is supposed to achieve. But justice is notoriously hard to define. Consider, Preet Bhara’s new book, Doing Justice. Mr. Bhara was for many years the US Attorney for the Southern District of New York. Mr. Bhara also spent several years as a line prosecutor for the Southern District. The book largely focuses on stories about prosecution, but it expressly refuses to do much to define what it means when a prosecution served the interests of justice.
Justice is a broad and hazy subject. It is one of the most elusive and debatable concepts known to humankind, and disagreements over its meaning have spawned revolutions, regions, and civil wars. I do not advance here some grand and novel theory of justice. But what I do suggest is that people will regard a result as just if they regard the process leading to it as fair and if they believe the people responsible and open minded.
(Bahra, supra, at xiv-v.) To me, “fair” is almost as difficult to define as justice. Anyway there is no reason fair has to mean what justice might require in a particular circumstance. “[A]n injustice is tolerable . . . when it is necessary to avoid an even greater injustice.” (J. Rawls, supra, at p. 4.)
Mr. Bahra is, however, in no way wrong about the extent of the debate over the concept of justice. The Republic of Plato was my first exposure to an attempt to define a just society. John Rawls has perhaps been the most important. Other books came in between. Justice as an academic exercise became especially important to me in college because of a professor at Lewis and Clark College, Curtis Johnson. Dr. Johnson, as a professor of political philosophy, was exceptionally curious about the concept of a just society. When he found out that I was going to law school, he pointed out that many lawyers had told him that justice did not play a role in their day-to-day practices. It is this observation that deserves to be tested after my 34 years in practice. How important a role has seeking justice played? And, if I have at times pursued justice, what did that mean?
B. Gold Ray Dam as an Example
Gold Ray Dam, which Jackson County, Oregon owned, was a derelict hydro-electric dam on the Rogue River built in the early 20th century. The dam had fish ladders, but they did not work well, and many salmon and steelhead were killed by the dam when they returned to spawn upstream. The dam’s old power house was also a danger, with large holes in the floor (down into the river) and other dangers. Jackson County (I was County Counsel at the time) decided that the dam needed to be removed.
Although the dam killed fish and was a danger, its backwater pool provided beach front access to some property owners.Removal of the dam would eliminate the backwater pool and potentially result in lower property value for the owners, who strongly opposed the dam’s removal. Several other property owners in a neighboring subdivision got their water from the river.If the dam were removed they would lose their irrigation systems unless they were rebuilt. The County did not propose to pay compensation.
One factor governing removal of the dam was cost. The money for removing the dam was to come from President Obama’s stimulus plan.The deadline for spending money to remove the dam, and get reimbursed by the federal government, was running out. A lawsuit preventing timely removal of the dam would have barred its removal for the foreseeable future.
As County Counsel for Jackson County it was my job to push removal of the dam through the legal system. As expected, the opposition filed legal actions to try to block removal.For example, the opponents filed an action at the Land Use Board of Appeals, which is essentially an appellate court for land use actions in Oregon. I was able to get the case dismissed by arguing that the Board did not have jurisdiction. The opponents also filed in federal court, but a team of lawyers and I were able to take advantage of mistakes the opponents made to prevent entry of an injunction that would have stopped removal of the dam. At the same time, the County’s contractor rushed its efforts. With such a rush it was able to get the dam removed before the opponents could get their act together and block removal of the dam. They never really had a judge hear the merits of their case. And the County paid virtually no compensation to any of the opponents, something that was never considered in court.
I am very proud of the legal work done to remove Gold Ray Dam. Fish are now increasing in population and the dangers of the old dam are gone. But did that work serve justice? I can tell you that at the time the notion of justice per se was not the reason for the legal work. I did strongly feel that the dam needed to be removed, and that the greater good would be served by removing Gold Ray. As for the opponents, my attitude was they had come to the problem. We were taking away something to which they had always only been temporarily entitled. I personally think, in retrospect, that removal of the dam was just, and that the opponents could have had their day in court, if they had better legal representation. But justice was not a direct concern of mine at the time. Winning was.
C. Lawyers’ Role in the Pursuit of Justice
Gold Ray demonstrates that lawyers’ role in the system is to win. The cause they seek to advocate may be just, and if the law is just, lawyers (and the the public generally) assume that the result will be just. In most civil cases, the goal of the lawyer must be to use the law as a tool to obtain a result. By allowing full argument of the case the assumption is that the result will be just.Justice is built into the system.
But sometimes it isn’t. Certainly Jim Crow laws and segregation were not just. But many convictions happened unjustly under those laws. For people who opposed such laws, their cause—changing the law—was justice, but the federal court system in which they argued still put emphasis on winning advocacy. And when the Constitution was upheld by such advocacy, winning was still the primary role of the advocate.
So, where does this leave me? In one of my most important cases, my focus was on winning and not justice. But in retrospect I do think we did justice, and part of the reason is the advocacy system is designed to produce just results, even if it sometimes fails. And, truth be told, the system usually does not deal with disputes that raise ringing calls of justice and right. Often the system works for peaceful dispute resolution as much as it does for resolving cases justly.
In conclusion, lawyers are primarily advocates. The job of a lawyer is to use the facts and the law to make the best case possible under the law, which is often malleable. But that doesn’t mean justice is not a consideration. Throughout our history lawyers have taken on the task of advocating for just laws and against unjust laws.But the goal has always been the same: to win.
About Foundation In Law
Over a long career as a practicing attorney, Frank Hammond came to realize many prospective legal clients do not know much about lawyering and lawyers – how they work, how fees are set, and how to deal with them. Beginning attorneys also often have little notion of what actual practice involves. This blog is meant to be a guide for both.
Disclaimer: The Foundation in Law blog is not intended to provide legal advice, and no attorney-client relationship will arise as a result of interacting with this blog. You are advised to consult with your own attorney regarding legal questions. The opinions expressed in this blog are those of the author alone. The author is licensed only to practice in the State of Oregon.