Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process

by Austin Sarat, William L. F. Felstiner

Overview

Each year more than 2 million Americans divorced, and most of them use a lawyer. In closed-door conversations between lawyers and their clients strategy is planned, tactics are devised, and the emotional climate of the divorce is established. Do lawyers contribute to the pain and emotional difficulty of divorce by escalating demands and encouraging unreasonable behavior? Do they take advantage of clients at a time of emotional difficulty? Can and should clients trust their lawyers to look out for their welfare and advance their long-term interests?

Austin Sarat and William L.F. Felstiner's new book, based on a pioneering and intensive study of actual conferences between divorce lawyers and their clients, provides an unprecedented behind-the- scenes description of the lawyer-client relationship, and calls into question much of the conventional wisdom about what divorce lawyers actually do. Divorce Lawyers and Their Clients suggests that most divorces are marked less by a pattern of aggressive advocacy than by one of inaction and drift. It uncovers reasons why lawyers find divorce practice frustrating and difficult and why clients frequently feel dissatisfied with their lawyers. This new work provides a unique perspective on the dynamics of professionalism. It charts the complex and shifting ways lawyers and clients "negotiate" their relationship as they work out the strategy and tactics of divorce.

Sarat and Felstiner show how both lawyers and clients are able to draw on resources of power to set the agenda of their interaction, while neither one is fully in charge. Rather, power shifts between the two parties; where it is achieved, power is found in the ability to have one's understandings of the social and legal worlds of divorce accepted. Power then works through the creation of shared meanings. Divorce Lawyers and Their Clients examines the effort to create such shared meanings about the nature of marriage and why marriages fail, the operation of the legal process, and the best way to bring divorces to closure. It will be fascinating reading for anyone who is going through, or has gone through a divorce, as well as for lawyers, judges, and scholars of law and society.

Product Details

ISBN-13:	9780195063875
Publisher:	Oxford University Press
Publication date:	08/03/1995
Pages:	208
Product dimensions:	9.56(w) x 6.53(h) x 0.83(d)

About the Author

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence & Political Science, and Chair of the Department of Law, Jurisprudence and Social Thought at Amherst College. He has co-authored many previous works on law, most recently The Rhetoric of Law, Law's Violence, and Sitting in Judgment: The Sentencing of White Collar Criminals.

William L. F. Felstiner is Professor in the Law and Society Program at the University of California, Santa Barbara and Distinguished Research Professor of Law at the University of Wales College of Cardiff.

Table of Contents

1. Introduction. 2. Reconstructing the Past, Imagining the Future: Defining the Domain of Relevance in Lawyer-Client Interaction. 3. Negotiating "Realism" and Responsibility in Lawyer-Client Interactions. 4. Law Talk in the Divorce Lawyer's Office. 5. From Adversariness to Resolution: Lawyers, Clients, and the World of Deals. 6. Conclusion. NotesReferencesIndex

Editorial Reviews

"This astonishing book provides a more concrete, intimate picture of the lawyer-client relation than I would have thought possible. In doing so, it challenges most of the conventional assumptions about lawyering. This is critical social theory with the vividness and excitement of modernist fiction."—William H. Simon, Stanford Law School

"This lively and compelling book takes the reader into the offices of divorce lawyers for fascinating glimpses into the difficult and tense moments when lawyers and clients negotiate divorce cases and discuss how the law works and what it can do for them. Theoretically, it is a brilliant interpretive study of the way meanings are made and contested in discussions between legal professionals and their clients. Ironically, it reveals the elusiveness of meaning and the fragility of the power of law in these situations. This is essential reading for anyone interested in the process of divorce or in the newest work in interpretive sociolegal scholarship."—Sally Engle Merry, Wellesley College and Past President of the Law & Society Association

"Divorce Lawyers and Their Clients is interpretive scholarship at its best. It will stimulate scholars and instruct practitioners. While it presents to socio-legal scholars a critique and reorientation of orthodox ways for analyzing power in lawyer-client relationships, it also offers rich insights on practice to reflective practitioners of matrimonial law and to law teachers who seek effectively to prepare their students for a client-centered practice on law."—Robert MacCrate, former President of the American Bar Association, and Partner, Sullivan & Cromwell

"This book illustrates what social study of law at its best can offer: vivid portrayals of how lawyers and law itself appear to clients and observers in settings usually inaccessible to outsiders. The authors brilliantly explore how lawyers and clients negotiate their own relationships, the meanings of their experiences, the relation between law and emotion, and ultimately, the place of choice and fate. Anyone interested in divorce, law-in-action, professionalism, or the struggle for meaning in the face of human crises should read and reread this book."—Martha Minow, Harvard Law School

"Everybody complains about lawyers, but no one does anything about them. One reason is that we have almost no reliable knowledge of what they do. For years social scientists said lawyer-client interactions could not be studied. But Austin Sarat and Bill Felstiner proved them wrong. This is the most comprehensive empirical investigation of how lawyers shape client understandings and objectives. The analysis is nuanced and sophisticated. It will be essential reading for both divorce lawyers and their clients as well as anyone seeking to reform the legal profession and legal education."—Richard Abel, University of California at Los Angeles Law School

From the Publisher

For years sociolegal scholars have recognized that law gets constructed through the interactions between attorneys and clients. Lawyers interpret legal rules, predict court decisions and shape legal results in consultations with their clients, most of whom never enter a courtroom or read the law themselves. Conventional arguments contend that attorneys hold most of the power in these interchanges and persist in translating the multifaceted problems of their clients into terms amenable to legal processing. A veil of confidentiality has generally prevented any empirical study of lawyer-client conferences, however, leaving supposition and formal legal and professional ideologies to guide our understanding of what happens in them. In this compact and readable book, however, Austin Sarat and William Felstiner lift that veil and challenge conventional assumptions in their analysis of observations of conferences between about 20 lawyers and their clients in 40 divorce cases. As the subtitle hints, the themes of this book focus on the fragility, uncertainty, and fluidity of power in lawyer-client interaction in divorce cases and on the struggle to construct meaning and to adopt provisional understandings of the marriage, the law, the legal process, and acceptable outcomes. In an introductory chapter, the authors set out an "interpretivist" frame for their reading of the lawyer-client conferences that they observed. This interpretivist view draws heavily on the work of anthropologist Clifford Geertz and attends particularly to the interweaving of social action and socially constructed systems of meaning. According to Sarat and Felstiner,"Meaning is the key word in the vocabulary of those who speak about law in interpretivist terms" (10). From this perspective the central problem of the book is the apparent collision in the law office between "meaning systems" -- the domains of personal experience and complex social relations in divorce and of legal rules, processes and ideology. This book examines that meeting and the ways in which law gives meaning to social relations and personal experience at the same time that it takes meaning from them. Central to this examination is the issue of power which is "seen in the effort to negotiate shared understandings, and in the evasions, resistances, and inventions that inevitably accompany such negotiations" (11). The authors sharply contrast their interpretivist focus with that of non-interpretivists who see power in instrumental terms as "the ability to realize certain goals and advance the interests of certain people or groups" (11). In this view law and lawyers serve as tools for goal attainment. The contrast in views becomes evident, for example, in Chapter 3 where the authors follow one lawyer-client pair through four conferences and five research interviews with the client and three with the lawyer over a period of roughly two years. The analysis focuses on the ways in which lawyer and client talk past one another and avoid overt conflict despite differing views on many Page 233 follows: issues. We see that meaning in the interaction is often provisional and subtly contested. Very little analysis, however, attends to the decisions made in the legal case and the outcome reached. For non-interpretivists those decisions and choices tell most about power, but for interpretivists the central issues of power reside in interactions over meaning. According to Sarat and Felstiner, "'Who says what' is as important as 'who gets what' in revealing law's power" (144). The consequent image of power that emerges in this book, thus, is of a ghost-like third presence in the lawyer-client relationship. "Power drifts" (74) or "power can be elusive, even to the point of disappearing" (83) or "Power was at once shaped and reshaped, taken and lost, present and absent" (83). "Power is not a thing that can be possessed; it is continuously enacted and reenacted, constituted and reconstituted." (22) The four central chapters of the book move from reflections on the marriage to preparation for settling the divorce. In Chapter 2, Sarat and Felstiner describe the contest between lawyers and clients over the appropriate focus of their conferences. Clients dwell on the marital relationship and try to interpret it in terms of responsibility and blame. In the context of a no-fault divorce law, lawyers disengage from these attempts to find meaning in the past, but take an active role in attempting to shape ideas of future strategy and goals. In turning attention to the future, attorneys disempower clients by telling them that their emotional investment in relationships clouds their judgments about how to behave in the divorce process. If clients must distrust their own judgment, the professional authority of their attorneys is reinforced. Yet clients resist these efforts that devalue their personal agendas and concerns, making power in the interaction a contested domain and assuring that shared meaning and understanding of events between client and lawyer is elusive. Chapter 3 examines the negotiation over "realism" and responsibility between lawyer and client as they jointly work to reconcile client goals, wishes and needs with what the lawyer believes to be legally possible. In Chapter 4, we hear lawyers interpret the law to their clients, emphasizing in particular the idiosyncratic character of court processes and decisions. The authors argue that these characterizations of law by attorneys contest its predictability and fairness, much as critical legal theorists do, and transform professional authority from one based on expert knowledge of rules to one anchored in insider knowledge of the personalized legal process. Chapter 5 explores the construction of the meaning of settlement and notes particularly the fragility of lawyer power in these discussions. In the view of divorce lawyers, "unrealistic clients" must limit their expectations while at the same time taking responsibility for settlement decisions. By doing so they are less likely to blame their lawyers when they get less than they want in a divorce agreement. Those familiar with the previously published articles by Sarat and Felstiner on this unique research project will find little that is startlingly new in this book, but they will discover much more than a collection of prior work. Although substantial portions of these Page 234 follows: earlier articles are readily identifiable in the book text, they have been reorganized substantially in places, new data have been added, the themes of power and meaning have been highlighted, and recent scholarly work about law, legal practice, divorce, and power and resistance have been neatly woven into the text. As a result, the authors clearly have produced a book, not a collection of weakly linked essays. The close focus on conversations between lawyers and clients is a major strength of this book. At the same time, the preoccupation with that interaction and the fleeting and uncertain meaning and power within it turns attention away from the social contexts of the work of divorce lawyers and of the lives of clients. Although the book draws on interviews with both attorneys and clients, it does not attempt consistently to situate lawyer conduct in the context of law practices or to locate the experience of divorce clients in terms of the broad social constraints of gender and socioeconomic status on their perceptions and choices. Clearly, interpretivists struggle against what they view as excessive emphasis on such structural concerns, but in their success in limiting attention to them, they also constrain their analysis and understanding of the social interactions and "meaning-making" they study. In this book, the authors are further limited by the narrow range of attorneys and of clients who permitted research access to their conferences. Although Sarat and Felstiner argue that their "findings are based on samples that are characteristic of the lawyers that most people with ordinary financial resources are likely to consult,"(10) they also admit that "the findings of this project should not be considered representative of all divorce lawyers" (9). They acknowledge that their lawyer sample -- neither book nor articles ever reveal exactly how many lawyers were studied -- overrepresents women and underrepresents divorce specialists with high income clients (9). In addition, however, it fails to include those lawyers who serve mainly working class and low income clients, often on a volume basis. We know even less about the clients that consented to participate in the study, but they sound in the transcripts to be generally well-educated even if not financially secure. By missing both the "boutique specialists" and the higher volume practitioners with low income clients, this study ignores the enormous and significant class variation in divorce law practice and in the experience and perception of divorce. Gender plays a somewhat greater part in this analysis than class, but receives surprisingly little attention given its centrality in divorce, the relative frequency of women in divorce practice, and evidence from other research of the disproportionate choice of women attorneys by female clients. In sum, this book provides an excellent example of the emerging contributions of interpretivist scholarship in sociolegal studies. Noninterpretivist scholars may be frustrated both by the persistent focus on the struggle over meaning rather than over decisions and action and by the primary attention to the conversations between clients and lawyers rather than to the contexts that help to structure them. However, by reporting on a unique set of data about lawyer-client interactions in divorce cases, the authors Page 235 follows: advance everyone's understanding of this crucial site for the creation, interpretation, communication and application of law.

Craig McEwen