Wednesday, August 16, 2006

Law is a Game of Manipulation

L.A. Law’s Empire

On Thursday, March 29, 1990, at approximately 10:00 p.m., Stuart Markowitz was arrested for DWI (drunk driving). The shock of Stuart’s arrest is compounded by the fact that he and his wife, Ann, had planned to go off to a motel to do “some unbelievably sinful things” (have sex). The promise of innocent sex is violently and definitively crushed by the powerful long arm of the law. If you are a member of the legal community, it evokes the iconic intrusion into the marital bedroom condemned in Griswold v Connecticut (1965).

Stuart’s breathalyzer tests read .09 (permissible limit is .08). Stuart had been sipping wine with Ann moments before the arrest, but he certainly did not look drunk. Fortunately, Stuart will be represented by Michael Kuzak, Stuart’s brash, young, sexy, terribly competent and ruthless partner. Micheal sits down with Ann and Stuart to explain the law:

Michael: Peter Himeson is the best toxicologist in the state. If he testifies for us, our stock goes way up. O.K. to the facts … Now, you had a glass of wine minutes before leaving the restaurant right.

Stuart: Well, I had wine with lunch so I guess, it was …

Michael: Yes, but timing is very important. Let me explain something. It takes 30minutes for a drink to get into your bloodstream. That means that if you had a glass of wine, just before you got into the car, our expert witness could testify that it wasn’t in your system when you were arrested … this is very important testimony … So … when do you think you had that last glass of wine.

Stuart and Ann understand implicitly.

Ann: He drank it right before we left.

Michael: Are you willing to testify to this?

Ann: Yes.

Michael: Good … Very good.

Note that Michael has just elicited the testimony he would like the witness to give without once inviting any reference to the truth of the matter. Michael understands, of course, that, his role is circumscribed. He cannot overly suborn perjury, or, more precisely, he cannot knowingly allow Ann or Stuart to lie about the chronology of Stuart’s drinking. On the other hand, there is no rule of law, no provision of the ethical code, nothing at all that compels Michael affirmatively to find out the trust about when the drinking occurred.

To perform the case well, Michael Kuzak will in fact had to make the case go away before trial. To this end, he has prepared the entire case before going to see the D.A. The provable facts are as follows:

1. Stuart had a .09 blood alcohol level, which is barely over the .08 DWI limit in California.
2. Two witnesses (Stuart and Ann) will testify that Stuart drank the wine just moments before he got into his car.
3. The state’s top toxicologist – a highly respected person in the field – will testify that based on this time line, it would have been impossible for Stuart to be drunk at the time of the arrest.

Armed with these rhetorical obstacles to conviction, Michael Kuzak goes to see the D.A., a woman he happens to know by name. He tells her the provable facts. He adds that the case has been scheduled before judge Matthews – a judge whom both Michael and the D.A. know to be a friend of the senior partner in Michael’s firm. She looks skeptical. Michael pleads with her. He asks for a favor: “I need this one.” Michael’s tone implies: “come on, please, just this time…”

Michael and the D.A. apparently have a professional friendship, an informal relation that arises from the repeated contacts of the routine. Very likely they have had cases against each other. It is this kind of professional friendship that sustains the vast informal network through which the long arm of the law does much of its work; plea bargains, settlements, consent decrees, etc. this is the network of the law within the law – the “Shadow Law”.

The shadow law works smoothly and efficiently in the shadow of the unwieldy bilateral monopolies created by the state’s statutory criminal law. The shadow law reduces transaction cost through an institution known as the “favor bank”, a huge, constantly rearranging assembly of ties, loyalties, debts, and obligations. To outsiders, it is the secret economy of the law operating in the interstitial spaces left by the rational structure of explicit doctrinal law. The favor bank is in significant part a feudal institution – hierarchical in structure and operated on principle of loyalty and honor, and on ties of professional friendships, like the one between Michael and the D.A.

In the end, the favor bank, the shadow law, and Michael’s performance, have done their work: the charges will be reduced to “reckless driving –dry.” And that’s what matters to us: Stuart is just too nice a guy to be convicted.

At the end of this episode, Stuart and Ann are back at their law offices and Stuart drops this inevitable bombshell: “I was guilty; three glasses of wine,” he says.

This is a brilliant piece of script writing it is brilliant because it confirms the central point that law is a game of power and manipulation. The lawyers manipulate and control. The law manipulates and controls as it tells its story through the mouths of the various legal actors – the lawyer, the D.A, the suspect, and the witness – all acting in their legal roles. And it is only when the long arm of the law is retracted and the choreographed legal roles have been dropped, that Stuart can tell us that he was in fact drunk.

We thus come to understand that whether or not Stuart will be convicted for DWI has virtually nothing to do with whether or not he was legally drunk at the time of the arrest. It was everything to do with the quality of the performance by various actors (most notably, Michael Stuart, Ann, the Cop, the D.A. and the experts) within the stylized, sometimes highly circumscribed roles that the law has scripted and structured for them.

The image of law presented here is the performance of rhetorical moves within scripted, stylized roles than can be used by the various actors to invoke or suppress institutional power. There are ratios of power among the various actors, and depending how all the actors deploy their power possibilities, it will be this outcome rather than that which will be produced.

From the perspective of the law in the books or law in the law school, Michael has engaged in some very questionable practices. Yet from a purely institutional perspective, he had done a good job of it. Besides, this is what real law is like – playing the power ratios and manipulating the performance to get the right result.

This is a world in which deceit plays an important part. Ann, Stuart and Michael succeeded in deceiving some of the other characters on the show (including each other). By the end of the show, Stuart even ends up deceiving himself: reflecting upon the fact that by being able to pay $3,000 for a top toxicologist, he was able to beat the rap. Stuart says: “I’m just lucky.” But Stuart abstract himself away from this unwelcome bit of social self-knowledge, denies to himself that he is part of this web of social power, and avoids any reckoning with the social sources of his power; it’s just plain, dumb, ineffable luck. This is an extraordinary moment of self-deception.

Here we get a wonderful insight into how the average lawyer manages to deal with the web of social power in which he is enmeshed. Like Stuart, the typical lawyer denies that he is of the web. He claims that he is outside or above the web.

One of the striking aspects of L.A. Law is that, it is often a better approximation of the world of law practices than the routine academic productions of normative legal thoughts. Everyone can understand that professional power is the juice that makes the wheels of the law-bureaucracies run. Lawyers tend to see their professional power as resting, “not on rules of law, but on local knowledge, insider access, connections, and reputations. Informal intimate relations with all levels of personnel in the system are sine qua non.

The favor bank and the shadow law, more than the reason of the better arguments, is the stuff of law. Normative legal thoughts implicitly assume that “we are a government of laws, not men.” However, practicing lawyers know very well that “it makes all the difference which judge is deciding a case.

Thus, for the effective trial lawyers, truth, rationality, and moral values play a role but only in an instrumental sense – only insofar as they aid the lawyer in effectively manipulating the jury/judge to reach the pre-determined desired outcomes. Control and manipulation are the objective. What matters is not the rationality of a story but whether the story will rhetorically and cognitively produce the desired result; what matters is not moral value, but the moralistic self-image of the jurors/judge.

Neither the truth, nor the rational content, nor the moral effect matters. What matters is the relation itself: who commands, who silences, who is believed, etc. lawyers know all this. To be effective, all of this must be implicitly understood – indeed internalized – as a system of differentiated relations among power, truth, rationality, rhetoric, and deceit. As Dauer and Leff put it:

“A lawyer is a person who on behalf of some people treats other people the way bureaucracies treat all people – as non-people. Most lawyers are free-lance bureaucrats, who can be hired to use typically in a bureaucratic setting, bureaucratic skills – delay, threat, selective surrender, almost-genuine passion – on behalf of someone unable to do all that for himself, or someone willing to pay others to do it for him.”

In conclusion, to the extent, then, normative legal thought remains concerned about the adequacy of its representations of the social sphere; it cannot afford to dismiss L.A. Law’s Empire. To the extent that normative legal thought is or wants to consider itself an authentic enterprise, it must recognize the advanced bureaucratization of the practice of law, and strive to understand how its own psychological, sociological, and rhetorical maps are so discordant with those on L.A. Law’s Empire.

Source: Adapted from Pierre Schlag; “Normativity and the Politics of Form – L.A. Law’s Empire” (1991) University of Pennsylvania.


Elmina Kenley said...

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David K. said...

I recommend reading it to the end.
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