The dignity of legal representation

24 Nov 18

In Lawyers as Upholders of Human Dignity, Georgetown Law Professor and legal ethics guru David Luban explains how advancing and maintaining human dignity is a fundamental cornerstone of our profession. Indeed, it is  “what makes the practice of law worthwhile.” 

Defining dignity as a “property of relationships between humans”, Prof. Luban articulates how the right to legal representation in criminal cases neatly encapsulates the notion of the law as a defender of human dignity. Prof. Luban starts with the premise that if human dignity is to mean anything at all, it must mean that every human has the right to have her story heard, particularly if the consequences at stake are moral condemnation, and loss of life or liberty, in the form of criminal sanction. “A procedural system that simply gagged a litigant and refused to even consider her version of the case would be, in effect, treating her story as if it did not exist, and treating her point of view as if it were literally beneath contempt.”

If we accept the premise that human dignity requires a full and fair opportunity to be heard, the need for an effective advocate becomes obvious. People may be inarticulate, ignorant of the law or the process, or even unable to speak or write. Without effective advocacy, the voiceless and legally mute cannot be heard or even acknowledged, and thus their dignity is denied. “Human dignity does not depend on whether one is stupid or smooth. Hence the need for the advocate.”

But isn’t it true that a lawyer’s theory of the case may wildly diverge from reality? How is allowing advocates to “spin” a case upholding human dignity? Prof. Luban answers:

The law forces an artificial and stylized organization into the way stories have to be told; by trial time, any legally coherent telling of the client’s story will bear only scant resemblance to its raw version. And, precisely if the client is inarticulate, unreflective, or simply stupid, the lawyers’ version will be stronger, cleaner, and more nuanced than the client’s version. The lawyer will read between the lines, and perhaps imbue the story with more subtlety than the client ever could. It seems to me that this does not disqualify the story from being, in an important sense, the client’s story.

What if that story is totally inconsistent with the truth? The strength of Prof. Luban’s thesis is tested by the following hypothetical that the professor relates:

A man is arrested while placing a stolen television into his car, and charged with possession of stolen goods. He tells the police that he bought it from a stranger on the street and had no idea it was stolen. At trial, he does not testify, but his lawyer wishes to argue the client’s version of how he obtained the television. The lawyer, cross-examining the arresting officer, elicits the admission that the defendant was placing the television in the back seat of his car, not the trunk. Arguing to the jury, the lawyer points out that if the defendant knew the television was stolen, he would be unlikely to put it in plain sight. … But unbeknownst to the jury and the prosecutor, yet known to the lawyer, the defendant did not have a key to the trunk.

Human dignity is advanced in this scenario, Prof. Luban maintains, because presuming initially that the criminal defendant has a good faith story to tell requires us to presume innocence that can be overcome only with a higher demonstration of guilt: the “beyond a reasonable doubt” standard. “Because we presume innocence”, the professor deduces, “the [reasonable doubt] standard says that if a good faith story of innocence could be constructed from the evidence, it violates the human dignity of the defendant to convict—even if that story is not true.”
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