Gillers: "In this system, as the advocate knows, you are 'right' if you win; you don't necessarily win because you are 'right'. The advocate views her job as to use all available legal and ethical means to achieve her client's goal, subject only to her client's willingness and ability to pay the cost, which includes the advocate's fee, if any."

I'm not sure that I buy this. It seems to reflect the hired gun mentality that we hoped to avoid through a discussion of problems of agency and authority. Perhaps if you take a very narrow, highly micro view of advocacy this could be a reasonable understanding, but advocacy doesn't exist in a bubble. In many cases lawyers can chose their clients and their cases; in many cases there are externalities not accounted for in the simple calculation of legal victory equals winning equals right. Lord Brougham's idea that "hazards and costs to other persons" are of no concern to an advocate similarly seems myopic and isolationist. Yes, both the guilty and the innocent deserve quality representation, but that representation does a disservice to us all if it fails to consider its external effects. Winning a single Pyrrhic victory does little to advance the interests of your client. It may be a duty to inform a client of all their options, but one would be remiss in failing to accompany those options with a discussion of their potential consequences.

My problem with the position Gillers takes is that what I see as a key component of lawyer-advocate decision-making "[subject to] her client's willingness" is placed in there almost as a throwaway modifier, there to remind us that we are the agent not the principal, but not worthy of sparking consideration of what impacts a client's willingness to pursue a particular legal option. An adversarial system may have its advantages, but one that encourages a scorched earth policy isn't doing its participants a lot of favors. For myself, I believe in a respectful adversarial system where each side takes full account of the effects on others of their actions. Perhaps the win is not so important once it's benefits are weighed against the damages to the other side, perhaps it is. But that's at least something that should be considered before blindly leaping into a fight. I think, no, I believe quality advocacy considers the impacts of its actions.


If one is not particularly versed in the English Victorian novel, Anthony Trollope most certainly needs an introduction!

Orley Farm as a whole work proceeds on a nearly Gothic level, fixating on the potential loss of a house/home, but is more broadly speaking about the disillusionment and angst felt by those whose advantages came to nothing because of the societal upheaval of the Victorian era and about the role of one's conscience in guiding action. More relevantly to the legal discussion is the conflict present between individual judgment and group judgment. Trollope as an author questions the advice of Augustus Staveley that one be "governed by the united wisdom of others" as opposed to "judg[ing oneself at] every step by [one's] own lights." Staveley, the son of a judge (could you tell by his name?) gives this advice to his friend our young orphan lawyer Felix Graham. Graham is a London lawyer about for the forgery trial of Lady Mason, Staveley his friend a brother of his eventual wife who would by all accounts follow in his father's footsteps and join the bar. Their discussions provide somewhat of a foil to the main storyline of Lady Mason, the forged will codicil that bequeaths to her Orley Farm and the conscientious decision she makes to give up the farm despite her legal victories.


[In my own mind, I think that Orley Farm has gained such traction as a fictionalized account of the lawsuit in small part because of the high opinion of it held by George Orwell, who is after all at the core a political theorist. Orwell finds the novel one of the most brilliant descriptions of the lawsuit in English fiction. Trollope himself favored the novel among all his works. The major part of its enduring relevance is probably mostly attributable to the family dramatics and portrayal of Victorian disillusionment and not to the legal ponderings of its characters.]

Of course, the excerpted section provides little of this important context, instead focusing on the frustration of a non-expert witness as to the confining structure of the trial format on the general public's desire for truth-telling and view of that aims as stymied by lawyers.