Essay on Guerrilla Lawyering
Guerrilla fighting can be found throughout history: the Maccabees took to the hills to fight the first recorded war of national liberation against overwhelming odds in Judeas in 170 B.C.; American farmers routed thousands of British troops during our revolution; eleven ragged Cubans and an Argentinean doctor standing on a mountain top began a revolution against the Batista dictatorship in 1956. Guerrilla fighting takes many forms: feminist artists dressing in gorilla suits and marching into establishment art galleries, two young film makers scraping together money and equipment to produce an independent film, individuals with small transmitters creating micro-radio stations in neighborhoods throughout our country.
The principles of guerrilla fighting can be applied to the practice of law. The law's primary purpose is to reinforce the status-quo. This is done in three simultaneous ways-- through the coercive power of the state, by the ideological legitimation of the existing social and economic structure and by providing a forum for peaceful resolution of civil disputes. In a Constitutional democracy like America the secondary purpose of the law is to protect individual and minority rights. This secondary purpose combined with our tradition of forceful, committed attorney advocacy allows space in which the progressive lawyer and legal worker can maneuver.
A. THE PRINCIPLES OF GUERRILLA LAWYERING
The principles of guerrilla fighting are the same in the jungle of Vietnam or the jungle of America's legal system. One, EMPATHY with our clients. Che Guevara said it best: "At the risk of seeming ridiculous a true revolutionary is guided by feeling of love." We don't ask juries for sympathy. That is something one gives to a person one feels sorry for, stands apart from and sometimes looks down upon. Empathy is the understanding of and the "identification with the character and experiences of another person." This is the emotional context we work from and try to communicate to others.
Two, AUDACITY. Rumpole of the Old Bailey, that crusty, wonderful fictional English barrister, advises us that "Fearlessness is the number one essential of an advocate."
Three, POLISHING OUR SKILLS. Guerrillas always have fewer resources than their enemy. Therefore, we must develop our skills to their highest degree. Preparation is critical for success. It is disheartening how often lawyers do not fully prepare. The pressure of turning over cases in order to make money, and a lack of empathy with the client result in poor preparation. But we do not put money first, and our client's cause is our own. Therefore, we are free to focus and spend days in preparation.
The resources of O.J. Simpson defense team are not available to most lawyers. But time after time small offices, with lawyers, legal workers and law students co-operating, have taken on and beaten large corporate insurance companies, district attorneys' offices and the U.S. government.
With an understanding of computers, networking with like-minded lawyers, a commitment to staying current on legal changes, and an office culture which encourages thorough work, the small firm can compete against anyone. Japan's most famous Samurai, Miyamoto Musashi, wrote in Book of Five Rings: "one man can beat ten, so a thousand can beat ten thousand ... you can become a master of strategy by training ... and come to appreciate how to apply strategy to beat ten thousand enemies."
Four, HISTORICAL PERSPECTIVE. The guerrilla fighter knows that social change does not happen overnight. We are in the struggle for the long haul. Each fight we join in is part of a historical process. Many radicals of the sixties expected the revolution to take place within a few years. When this did not happen they became cynical or emotionally burnt out which blinded them to the significant gains in gender and racial justice which had been achieved and to the successful transformation of the stultifying, authoritarian, conformist culture of the fifties. This led them to withdraw into inaction, or in too many cases to fall victim to co-optation.
While confined to a fascist prison, Marxist leader and theoretician Antonio Gramasci wrote that we must have "Pessimism of the mind, optimism of the will." He was urging revolutionaries to make a realistic evaluation of the odds against them, but draw from their emotional strength in order to overcome those odds. Gramasci, like Ho Chi Minh, educated people to take a long view of historical change while at the same time throwing themselves into the battle. They argued that patience is not a weakness, rather it shows an understanding of the rewards that come from protracted struggle. A fine lawyer in South Africa, Nelson Mandela, went from arguing cases to guerrilla war to prison. Yet after 27 years in prison he was freed to see the beginning of his dreams come true. A young lawyer in the San Francisco Bay Area spent eleven years working to free Black Panther Johnny Spain from prison. After appellate briefs, federal habeas corpus petitions, evidentiary hearings, federal district court arguments, more appellate briefs, parole hearings, and countless legal proceedings, the lawyer was rewarded with a final victory and Spain walked out of prison a free man.
There are many more examples of sustained guerrilla fighting. A lawyer had to take out a second and third mortgage on his house to finance a huge sex discrimination against State Farm Insurance Company. After winning a five month trial it took eight more years to obtain the first large installment payment. Finally the sixteen year saga ended with the largest recovery in the history of civil rights litigation (approximately 250 million dollars).
And today an overworked legal services attorney in Brooklyn has taken away ownership of a HUD-financed housing project from corrupt private slumlords and placed it in the hands of the tenants. Now he begins a lengthy battle to bring civil and criminal actions against another private landlord who has exploited 104 HUD housing projects, with a real estate value of 750 million dollars, in 16 different states.
Patience does not mean passivity. Rather it is a tool to help us remain active and strong.
B. THE GOALS OF GUERRILLA LAWYERING
One. WINNING CASES. Our clients don't come to us to lose. Yet it is not necessary to accept the flawed proposition that an attorney must do anything to win. We can win cases not only in court, but through reasonable settlements, insightful mediation and compassionate counseling. We can win without violating our political principles or the moral center of our clients.
Two. BUILDING POWER. Lawyers do not make fundamental social change. Test case victories can be overturned by a Rehnquist type Supreme Court, or wiped out by a conservative legislature. However, lawyers and legal workers are essential to peoples' movements because in America, almost every significant social struggle is forced into the courts at some point. The public debate around issues such as race, abortions, welfare, labor struggles, and crime are often defined by lawyers and judges.
After all it as lawyers who coined the phrase "affirmative action" instead of "social justice" or "equality of opportunity," and thereby confused the moral issue and neutralized the power of the concept.
In addition to defining the public debate, lawyers create space for organizers (voter registration workers in Mississippi, draft resisters in Chicago, tenant groups in San Francisco, environmental activists in Washington). Just as large corporations use house-counsel to advise and defend them, we can be house-counsel for community organizations. Wherever people are trying to better their lives, or fundamentally alter social inequality we can be of use. Mao Tse Tung, who for all his faults, lead the most important peasant revolution in history understood that "the guerrilla is the fish, the people are the ocean."
An example of middle class students, doctors and lawyers merging their theories with actual practice are the men and women of the Cuban revolution. Che Guevara in "Notes for the Study of the Ideology of the Cuban Revolution" described the positive effect of working with the campesinos during the guerrilla struggle.
"The men who arrive in Havana after two years of arduous struggle in the mountains and plains of Oriente, in the plains of Camaguey, and in the mountains, plains and cities of Las Villas, are not the same men, ideologically, that landed on the beaches of Las Coloradas, or who took part in the first phase of the struggle. Their distrust of the campesino has been converted into affection and respect for his virtues; their total ignorance of life in the country has been converted into a knowledge of the needs of our guajiros; their flirtations with statistics and with theory have been fixed by the cement which is practice."
The more connected we are to communities and to movements (small or large) the more effective and long-lasting will be our work.
Three. DIGNIFY THE CLIENT. The legal system isolates clients from each other. Court intimidates and alienates people, leaving them powerless. Think of Kafka's The Trial, Camus' The Stranger, or really observe and feel your clients' reactions to their cases. We dignify the people we represent by recognizing their strengths and potential, expressing their humanity in every interaction with opposing counsel and standing up for them in the courtroom.
Four. DEMYSTIFYING THE LAW. Like the priest we are part of the rituals and dogma of an intimidating system. We need to bring clients into our privileged circle.
My trial practice teacher at Boalt Hall said: "Never really discuss the case with your clients. They will either not understand and keep asking questions, thereby taking up your time (a lawyer's time is money). Or they will understand and then wonder why they are paying you so much for something so simple."
We reject this arrogant brand of professionalism. Explain the case to your clients. Listen to them - to their lives. They are in crisis and have come to you for support as well as advocacy. And bring them into decision-making as much as realistically possible.
Five. DE-LEGITIMIZING THE LAW. The facade of the law's neutrality and objectivity must be broken. Especially when working with community groups the guerrilla lawyer exposes the law's role in reinforcing the existing system. When there is an opportunity, discuss alternative systems. For example, in an environmental case, discuss that among most Native American tribes one single person could not "own" a forest or a mountain. Such discussion allows people to envision different, more humane social realities and to reject the legal system's legitimation of existing property relations.
Six. BREAKING HIERARCHIES. The guerrilla fighter worked within defined leadership roles and accepted agreed upon lines of authority. But she was grounded in a belief that her comrades were equal. Each treated the other with respect. This can be translated in our relations with those in our offices. In law collectives, lawyers and legal workers broke hierarchies as everyone had equal decision-making power in the policies of the firm and had equal salaries (or salaries based on need). Even if you are not part of a collective, you can create a more egalitarian, shared, caring law office. Legal workers should not be chained to a word processor, law students should not be given a life sentence to the Siberia of the law library. Co-operation builds commitment, which translates into a more effective law practice.
Guerrilla lawyers have a vision of a more just world where equality of opportunity is a reality and people feel a connection to each other. We have theories on how to achieve fundamental social and economic change. But in addition to our ideas we must engage with real people. You don't have to love the Law to be a lawyer, but you do have to love your work. This idea is expressed by Jean Paul Sartre in his play Dirty Hands:
Hoederer: You don't love men, Hugo. You love only principles.
Hugo: Men? Why should I love them? Do they love me? I joined the party because its cause is just, and I shall leave it when that cause ceases to be just. As for men, it's not what they are that interests me, but what they can become.
Hoederer: And I, I love them for what they are. With all their filth and all their vices. I love their voices and their warm grasping hands, and their skin, the nudest skin of all, and their uneasy glances, and the desperate struggle each has to pursue against anguish and against death. For me, one man more or less in the world is something that counts... The revolution you dream of is not ours."
Or as Emma Goldman, a true guerrilla warrior said, "If I can't dance, I don't want to be part of your revolution."Written by Paul Harris who is a former National President of the Guild, co-founder of the San Francisco Community Law Collective, and author of Black Rage Confronts the Law. He currently works with the Center for Guerrilla Law in San Francisco.