Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.
This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of paradox. After identifying the features of these two practices of lawyering – called here legality and proactive lawyering – the Article sets out five lawyering paradoxes that stem from the opposing yet interdependent features of legalistic and proactive lawyering: paradoxes of thought and discourse; relationship; motivation, mindset, and justice. Next, the Article shows the consequences of legal education’s tendency to avoid, sidestep, or downplay these paradoxes. Finally, drawing on existing research and experiences of innovators, the Article identifies three strategies that can enable students and lawyers to construct a dynamic tension between legality and proactive lawyering, and in the process build the potential for transformative learning and meaningful justice.
Susan P. Sturm,
Lawyering Paradoxes: Making Meaning of the Contradictions,
Columbia Public Law Research Paper No. 14-642
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2579