By Yveka Pierre, Esq. Litigation Counsel, If/When/How: Lawyering for Reproductive Justice
On my first day of law school, I walked into the moot court room in my thrifted business professional outfit, a flat wrap with half an inch of new growth, inartfully pressed that morning, and tried to convince myself that I belonged there. I was trapped somewhere between black exceptionalism and imposter syndrome. Waiting for me at my too-expensive Washington, D.C. apartment was a blowup mattress, an EBT card with enough money to last me until financial aid dropped, and a car I couldn’t afford to gas up.
I went to law school to be a changemaker.
One by one, the deans of my law school came to the front of the room to greet the new class, and one by one, they referred to us as troublemakers. When you are a lawyer seeking to change a broken status quo, you have to be a troublemaker, you have to make good trouble, and troublemakers have to think outside the box.
In the years since that pivotal moment, I’ve met plenty of troublemakers. Sometimes that troublemaker was the public defender whose client was held on extravagant bail, who grabbed the case file, stepped out of the well to headed to make a bail review application. Others times, it was the lawyers who answered the Muslim ban by showing up at airports with laptops and law books, writing petitions while sitting on the floor. Sometimes, those troublemakers were the lawyers like my colleagues, giving presentations on decriminalizing self-managed abortion to those either unaware, or unable to empathize with the oppression others experience.
On the days we get lucky, troublemakers might find ourselves in the same room, perhaps at the same conference, and are able to shine the light on the work we do. Those rare times are not enough.
When you are a lawyer seeking to change a broken status quo, you have to be a troublemaker, you have to make good trouble, and troublemakers have to think outside the box.
When we think of what it means to be a “good” lawyer, we often think of someone who practices in one area of law enough to form a specialty. That lawyer eventually begins to learn the ins and outs and the quirks of the law, and with enough time and dedication, they might even begin to establish a mastery. While correct in some ways, that definition leaves a lot of middle ground unexplained. Quite often, when a client is interacting with their attorney, the difference between a good lawyer and just a lawyer is effort, not mastery. That effort is marked by listening fully to the legal problem being faced, the life that problem is affecting, and responding to it. Neither we, nor our clients, live in a vacuum, so why should we lawyer in one?
The concept of holistic lawyering is not new. It is a model used by public defender and direct client service organizations all over the country. Robin Steinberg of the Bronx Defenders wrote in her paper, Beyond Lawyering, that the move toward holistic defense is “a critical opportunity to fundamentally alter the way justice is experienced, both for indigent clients and the lawyers who represent them.” The concept challenges attorneys to think of their clients as a whole person, not simply as the legal problem they are currently facing.
Intersectionality is another framework that requires examining the wholeness of a person, but also how discriminatory systems overlap to disenfranchise folx at the intersection of their identities. Intersectionality was coined by Kimberlé Crenshaw in her 1989 paper Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, and centered Black women “to contrast the multidimensionality of Black women’s experience with the single-axis analysis that distorts these experiences.” Though Crenshaw’s 1989 paper centered Black women, the framework has expanded in vein of the original stated goal: “to facilitate the inclusion of marginalized groups for whom it can be said: ‘When they enter, we all enter.’”
Holistic lawyering requires us to meet people where they are, and in combination with the application of the analytical framework of intersectionality – examining how systems of power impact marginalized communities – becomes truly client-centered lawyering. Holistic lawyering through an intersectional framework is having a client who is being forced out of her home, and looking past the eviction notice to see that your client is a queer Afro-Latina woman, who is not a U.S. citizen, who is living below the poverty line, for whom English is not her first language, and examining how is she is affected by overlapping layers of discrimination while she inhabits all of those identities concurrently. The immediate problem may be the eviction, but what else is affected? How can her immigration status be affected by potential homelessness? How does her status as a queer Afro-Latina woman affect her choice of housing, affect where she feels safe to live? How does her English proficiency affect her ability to gain housing?
What happens next is the hard the part. It’s the part that requires lawyers — which quite honestly is one of the most prideful professions in our modern time (writer of this post fully included) — to break out of our vacuums to solve problems. Lawyering is billed as this Herculean effort to solve all the problems, or worse, ignoring the other possibilities when those answers are not forthcoming. It doesn’t have to be; moreover, it shouldn’t be. What will inevitably happen when we start doing the work of looking past the “question presented” will be acknowledging the times when we don’t have the answers. Even for lawyers who do not have a high-volume practice, or even a direct client service practice at all, will still run into questions that affect communities where we will not have the answers.
Lawyering is billed as this Herculean effort to solve all the problems, or worse, ignoring the other possibilities when those answers are not forthcoming. It doesn’t have to be; moreover, it shouldn’t be.
That realization needs to lead to self-examination, and relinquishing the assumption that the answer must lie in traditional lawyering as we know it. Sometimes, the way to advance the best outcome is through navigating a system that does not center lawyering. Legal strategies are but one aspect of the toolbox that can exact the social change that makes it possible for a marginalized group or person to – to return to Crenshaw’s metaphor – “enter the door.” At times, the legal strategy that best benefits the person we are attempting to service will fall outside of our personal legal expertise. That is the part that requires us to lawyer with an eye towards justice, not an eye towards our ego. Build your network of troublemakers, and be willing to be an accessible part of other’s networks, including returning emails and phone calls. Think outside of legal strategies, and engage existing community resources. Oftentimes, organizers know the stakeholders in the community that would be able to offer support to your clients in ways you haven’t considered. Reframe your thinking of what it means to win; sometimes the “win” for our client is not the “win” for us. For example, we may believe we have a great chance at trial, but a client may still want to take the plea, or the settlement. The best interest of the client will always be autonomy after having all of their legal options explained.
When we are on the path that requires us to rage against the dying of the light, we have to escape the vacuum. After all, light doesn’t live there.
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