legal strategies

This morning the University of Florida Law School hosted a symposium in honor of our colleague of 51 (!!) years, Walter Weyrauch. Walter was studying social norms and the unwritten laws of small groups well before such study was cool; his recent book on the oral law of the Romani is illuminating and brilliant (Gypsy Law: Romani Legal Traditions and Culture, U. California Press, 2001). A stellar group, including Lynn LoPucki (UCLA), Inga Markovits (Texas), Michael Reisman (Yale), and Alison Barnes (Marquette) spoke of Walter's work and its influence.

LoPucki summarized the great article he co-wrote with Walter, A Theory of Legal Strategy, 49 Duke Law Journal 1405-86 (2000), which, as its title suggests, argues that legal strategies are frequently more determinative of litigation's outcome than substantive law. In many ways, this is a fairly obvious insight, particularly for practiced litigators and for anyone who teaches procedure or skills-based courses. If we're all really realists now, then we all know the extent to which the law in action regularly supersedes the law in books. Of course, it's one thing to recognize an insight's obviousness; it's quite another to reveal the insight's implications.

But how do we teach this to students? And do we? If we emphasize legal strategies, aren't we feeding into students' (and the broader culture's) cynicism about law and its practice? On the other hand, if we try to hide the strategic element of legal practice, aren't we cheating our students, either offering them homilies about the rule of law or simply keeping them blind to the realities of legal practice? The two co-authors themselves suggested they use different pedagogical strategies. LoPucki foregrounds the strategic element of bankruptcy practice, disclosing all the tricks of seasoned bankruptcy attorneys. Weyrauch suggested a hesitancy to articulate the unarticulated rules of the game, allowing them to emerge from class discussion and case law study. In response to a question I asked about this to the panel, Reisman said that of course we must teach the failures of the legal system to engage and enforce justice because of strategies the litigants use, and work towards legal reform that can correct unjust results and unfair strategies; and while this may be right, it seems to apply only to those spectacular cases when a just substantive end can be easily identified. Everyday legal practice offers instead plenty of banal instances in which two equally sophisticated or unsophisticated parties face off against each other, and a winning legal parry isn't producing any obvious injustice.

How do we teach strategies in a way that doesn't unravel or at least undercut the entire enterprise of legal pedagogy? Or is the question naive, and in fact what we're doing inevitably isn't teaching how to practice law but how to win while practicing law?