Tuesday, October 26, 2010

When lawyers strike (or not)

I've been debating whether to devote space on Grits to a suggestion from the new blog "Lawyers on Strike" that Texas lawyers "strike" next month to protest Judge Sharon Keller, but I hesitated because Mark Bennett and Scott Greenfield have cataloged most of the critiques I have of the idea from a practical perspective. It seems like the tactic, even if successful, would throw the lawyers' clients under the bus. For my part, I'd lose respect for any attorney who followed through on the idea without getting their cases reset, which of course would require showing up in court and make the idea of a strike moot.

However, I'll add a few observations from the perspective of a political tactician that make me even more skeptical about the idea beyond issues of legal ethics: IMO the notion is simply bad political strategy and misunderstands the role of blogs and new media in modern politics, for several reasons.

Direct action like strikes are risky endeavors and the stakes must be high to justify it. When unions strike it's to force concessions at the negotiating table in their contracts. This suggestion, however, merely serves a symbolic purpose; even if wildly successful it would not provide leverage for political actors to make substantive change in its wake. Such symbolism may massage the egos of those promoting it but it doesn't actually help anybody in the real world as a practical matter. In the writer's initial post on the subject he asks: "Will it matter?  Will anyone even pay attention, to say nothing of actually engaging in a strike?  If anyone did, would it ever be an effective remedy for what ails the system?  That’s the experiment." IMO those are questions  that responsible leaders must be able to answer before calling for direct action. You don't "experiment" with people's livelihood or the fate of defendants just out of curiosity with no identifiable prospects for success.

Direct action gets romanticized by folks who've read tales of success by Gandhi, MLK, and sit-ins at southern lunch counters in the '60s. But in more recent times, those tactics have become dated and those in power have learned how to counter them or just sit them out. The best example is probably the futile sign-holders at anti-death penalty protests in Huntsville prior to every execution. Only the most jejune gudgeon would fantasize that approach has a remote chance of ending the death penalty in Texas. I don't want to be mean about it, but even those participating in such efforts don't believe their actions will change anything; they just can't think off anything else to do.

In my 20+ years in Texas politics, I've seen direct action succeed exactly once out of dozens of examples (excluding labor disputes over contracts), and that was because it was part of a broader strategy, with environmentalists chaining themselves to construction equipment long enough for attorneys to go to court to stop illegal destruction of endangered species habitat by a developer west of Austin. But direct action itself didn't change anything, it just bought time to get the issue into a courtroom. If the tactic hadn't been part of a broader strategy it would have been pointless. That's my biggest problem with the suggestion that lawyers strike, however corrupt or dysfunctional one may consider the system to be: I don't see the endgame.

Further, blogs are not an effective vehicle to promote this tactic, even if you think a symbolic statement serves some purpose (which in general, I do not). Blogs have extremely limited reach, at best. Grits has been operating for more than six years and gets upwards of 50,000 visitors per month. But when I was at the Innocence Project of Texas' annual meeting recently, Jeff Blackburn asked the audience - mostly criminal defense lawyers and law students - how many of them read Grits for Breakfast: perhaps a third of the group raised their hands. I'll guarantee the blog Lawyers on Strike enjoys a tiny fraction of Grits' readership, so how can Atticus hope to inspire collective action if most people being asked to act will never hear the request? Blogs are frequented by people who are actively seeking out information, which is a small subset of folks: Their audience is made up of opinion leaders, not the "masses."

Strikes require disciplined organization and blogging is an endeavor that at best generates only weak connections among people. (See this recent Malcolm Gladwell article from the New Yorker fleshing out that argument.) Political organizing for direct action requires strong leadership and tremendous group cohesion, whereas the blogosphere is more analogous to a a bunch of leaderless, milling cats who can barely agree on the time of day. That's even more the case when, as Greenfield pointed out, the blogger advocating direct action is anonymous - in this case adopting the hackneyed nom de plume "Atticus" from To Kill a Mockingbird. One cannot build strong connections with your constituency if they don't even know who you are. And since, as mentioned, strikes are risky endeavors, nobody is going to act on the suggestion of somebody who won't even risk revealing their name. You can bet the courts will know the names of lawyers who strike, and as Bennett points out they'll likely face sanctions and maybe even jail time for contempt if they follow Atticus' advice.

Finally, the suggestion is naive insofar as it dramatically underestimates what's required to pull off an action on the scale necessary to have any impact. Atticus has recommended November 17 as the target day for a strike. But even if you believe the tactic has merit, that's an absurd goal for a statewide action. If one were serious about promoting that kind of large-scale event, it would take a year or more to do all the legwork necessary to make it happen. One would have to identify all members of the target group to be organized, expend resources (mail, phones, public meetings, advertising, etc.) to educate them on the hows and whys of the effort, create mechanisms for individuals to have input and buy-in, then mobilize them using an array of tactics, just like electoral campaigns do with GOTV efforts on election day. You're not going to get there just by setting up a blog on Wordpress and announcing anonymously "Everybody do what I say."

It's not that I don't believe blogging has a role in political activism. Recently Grits launched and ultimately succeeded in a year-plus-long effort to create Indigence and Amnesty programs for the million-plus drivers who've lost their licenses under Texas' Driver Responsibility Program. However. it wasn't editorializing on the blog that achieved that goal: I had to physically go speak to the Public Safety Commission (and not anonymously, either), build alliances with sympathetic organizations, and participate actively in deliberative processes at DPS to win even a partial victory. I'd been criticizing the DRP for years on this blog and in other forums before that, but in and of itself blogging wasn't going to change public policy. It's just one tool in the toolbox and you can't build a house if the only tool you've got is a hammer, however helpful it may be at the one task for which it's suited.

Blogs and social media have a role but they cannot and will never be the end-all-be-all of political activism. To have an impact, one must know what they're good for and what they're not: Organizing strikes definitely falls in the latter category.

UPDATE: See the "strike" organizer's response.


Prison Doc said...

Grits, that was a very well reasoned critique. The strike idea sounds a lot more like sour grapes than it does a meaningful action. The answer, for all of us, should come at the ballot box.

If I were a client I would seriously question the maturity and judgement of any lawyer who participated in this harebrained scheme.

Don Dickson said...


Alan said...

I'm going to disagree, not for any substantive reason, but just so I can be called a "jejune gudgeon" for the first time in my life! I'd claim that insult just for its uniqueness.

Mark Bennett said...

Keller's campaign staff would love a criminal-defense lawyers' strike against her. They'd eat it up. It would be the cornerstone of her next campaign.

Anonymous said...

A way for criminal defense lawyers to go on strike is to set every case for trial. A trial by jury protects the clients' rights, and it grinds the system to dead stop.

Gritsforbreakfast said...

Alan, I admit I've been searching for a way to use the word "gudgeon" on the blog since I heard it in Shakespeare's "Merchant of Venice" awhile back: "fish not, with this melancholy bait, for this fool gudgeon, this opinion" :)

Mark, I agree: If it actually came about it'd be a gift for Keller.

3:54, that's a much better "strike" idea, though in some cases there's still a risk of throwing your clients under the bus because of the so-called "trial penalty."

Anonymous said...

A good action to take regarding Sharon Keller would be to elect a Democrat to join her on the CCA.

Anonymous said...

I say strike. Keep up the agitprop.