The Pursuit of Justice: New Directions in Scholarship About the Practice of Law

Abstract

Clinical scholarship is currently developing an analysis of the practice of law that explores the lawyer's role in building a case from the infinite universe of facts.' Clinical legal education has traditionally focused on categories such as interviewing and counseling, fact investigation, negotiation, mediation, pretrial preparation, trial advocacy, and appellate advocacy. Clinical scholarship, however, is investigating processes that cut across these categories. It is exploring the lawyer's role in transcending differences of race, gender, class, religion, ethnicity, age, disability, sexual orientation, and other significant identifying characteristics. It is analyzing the process of framing the story of a case. It is investigating how lawyers tell the story of a case. This essay surveys clinical scholarship about the lawyer's role in constructing a case from facts and law. I contend that this literature is creating a deeper analysis of what lawyers do when they represent clients. This developing analysis of the lawyer's role can improve the ability of practicing lawyers to anticipate problems and to resolve them, and it can enhance the ability of legal education to prepare students for practice. The essay describes activities involved in building a case and organizes them into three processes: transcending differences, framing the story of a case, and telling the story of a case. The descriptions of lawyering activities found in clinical scholarship are often drawn from dilemmas encountered in actual practice, and the solutions proposed for particular problems may be applicable to only one area of law or one type of case. But literature describing particular cases and particular problems can lead to discovery of general principles and approaches. This essay focuses on some of the dilemmas that appear to have the most applicability and to be the least case-limited. The dilemmas call for practical solutions based on theories and models of lawyering.