1. Boston Legal Class Exercise Selene Mize Faculty of Law, University of Otago NIFTEP 6 November 2009

2. The Exercise Underlying case Underlying case Lawyers Lawyers Watch clips Watch clips Jot down one or two sentences for each of the following questions: Jot down one or two sentences for each of the following questions: Would you crush a close friend to win a lawsuit? Would you crush a close friend to win a lawsuit? In a nutshell, what is the nature of the relationship between a lawyer and client? In a nutshell, what is the nature of the relationship between a lawyer and client? What does it take to be an ethical lawyer? What does it take to be an ethical lawyer? (There is no one right answer.) (There is no one right answer.)

3. Would You Crush a Friend to Win a Lawsuit? Thoughts? Thoughts?

4. Former Students 49% said no or probably not 49% said no or probably not 24% said maybe, it depends, or I hope not 24% said maybe, it depends, or I hope not 24% said yes, probably, or if the situation required it 24% said yes, probably, or if the situation required it 3% did not answer or didn’t know 3% did not answer or didn’t know

5. Those Saying Yes Protection of the client Protection of the client “You take an oath to defend your client, not be kind to your friends” “You take an oath to defend your client, not be kind to your friends” “I would do what is best for my client” “I would do what is best for my client” “The client takes priority” “The client takes priority” Role differentiated morality Role differentiated morality “Friendship and work should be separated, so yes” “Friendship and work should be separated, so yes” “Personal relationships should not affect how you do your duty and job as a lawyer” “Personal relationships should not affect how you do your duty and job as a lawyer” “It’s just business” “It’s just business”

6. Some were vehement Some were vehement “Damn right!” “Damn right!” “Hell yes!” “Hell yes!” Some were reluctant, Some were reluctant, “It would be difficult and I would be more to mediate as much as possible first but I suppose if the job requires you to win a case - that’s what I would try to do” “It would be difficult and I would be more to mediate as much as possible first but I suppose if the job requires you to win a case - that’s what I would try to do” “If there were no alternatives” “If there were no alternatives”

7. Reciprocity was often mentioned Reciprocity was often mentioned “Yes, I’d expect the same of them” “Yes, I’d expect the same of them” “Hopefully my friend would do the same to me” “Hopefully my friend would do the same to me” Guilt too Guilt too “Maybe, but feel bad afterwards” “Maybe, but feel bad afterwards”

8. Those Saying Maybe or It Depends Situational factors (disliked by many philosophers, in fact powerful determinants) Situational factors (disliked by many philosophers, in fact powerful determinants) “If the case were important enough” “If the case were important enough” “That would ultimately on how important the outcome of the case would be to my client vs how bad my friend would feel. Some things are more important than preserving others’ feelings.” [Do Jerry’s interests weigh equally with the client’s?] “That would ultimately on how important the outcome of the case would be to my client vs how bad my friend would feel. Some things are more important than preserving others’ feelings.” [Do Jerry’s interests weigh equally with the client’s?]

9. Distinguishing between crushing the friend in legal and personal ways Distinguishing between crushing the friend in legal and personal ways “That is not law” “That is not law” “Not in the unprofessional and completely irrelevant way on the clip” “Not in the unprofessional and completely irrelevant way on the clip” “Yes but within limits, professionally” “Yes but within limits, professionally” Equivocal Equivocal “Hopefully not, but possibly yes” “Hopefully not, but possibly yes” “I don’t know but I would like to say no” “I don’t know but I would like to say no” [Here we often discuss difficulties in predicting behaviour, and the influence of pressure on decision- making] [Here we often discuss difficulties in predicting behaviour, and the influence of pressure on decision- making]

10. Those Saying No “NO! One of the greatest fears I have in entering the legal system is that I may have to compromise my values and integrity. This goes against everything I have been taught and everything I believe.” “NO! One of the greatest fears I have in entering the legal system is that I may have to compromise my values and integrity. This goes against everything I have been taught and everything I believe.” “No, you wouldn’t try and crush anyone” [deontological] “No, you wouldn’t try and crush anyone” [deontological] “Friendship is too important” “Friendship is too important”

11. “It is dirty and immoral” “It is dirty and immoral” “It is not really legal argument” “It is not really legal argument” “The purpose of every lawsuit is to determine truth in a respectful manner for both parties” “The purpose of every lawsuit is to determine truth in a respectful manner for both parties” “No, but don’t tell my clients!” “No, but don’t tell my clients!” “What goes around comes around” [pragmatic vs ethical reasoning] “What goes around comes around” [pragmatic vs ethical reasoning]

12. One person wrote “yes” then crossed it out and wrote “depends” then crossed it out and wrote “no”. I praise the reflection at work in this answer. One person wrote “yes” then crossed it out and wrote “depends” then crossed it out and wrote “no”. I praise the reflection at work in this answer.

13. Why I Use this Exercise By making students turn in the form, they become actively involved, rather than remaining solely passive observers in class (ideally, setting a trend for the rest of the semester) By making students turn in the form, they become actively involved, rather than remaining solely passive observers in class (ideally, setting a trend for the rest of the semester) Doing it on the first day of class, student motivation is usually very high Doing it on the first day of class, student motivation is usually very high Curiosity about a new subject Curiosity about a new subject Assignments and exam prep not yet making conflicting demands on time Assignments and exam prep not yet making conflicting demands on time At the start of the semester, students can’t easily guess my own views, and try to feed back what they think I want to hear At the start of the semester, students can’t easily guess my own views, and try to feed back what they think I want to hear

14. It introduces the role of lawyers -- a subject we will return to at several points during the semester It introduces the role of lawyers -- a subject we will return to at several points during the semester

15. The Relationship Between Lawyers and Clients What is the essence of a lawyer’s job? What is the essence of a lawyer’s job? To help the client achieve his or her aims To help the client achieve his or her aims Ensure the process runs correctly Ensure the process runs correctly ??? ???

16. What Does it Take to Be an Ethical Lawyer? Student answers often mention: Student answers often mention: Philosophy Philosophy Personal morality Personal morality Role-differentiated morality Role-differentiated morality Situational factors Situational factors Care for others Care for others

17. I Tell Students: Some people determine their ethics from an outside source (eg religion) Some people determine their ethics from an outside source (eg religion) Some model themselves on a role model’s character or actions Some model themselves on a role model’s character or actions Some start from an overall philosophy, and move to the specific applications Some start from an overall philosophy, and move to the specific applications Some introspect and reach decisions for specific situations, and leave grand philosophies for later (or never) Some introspect and reach decisions for specific situations, and leave grand philosophies for later (or never)

18. There are lots of ways, all justifiable, to reach one’s personal sense of ethics (and it doesn’t happen overnight) There are lots of ways, all justifiable, to reach one’s personal sense of ethics (and it doesn’t happen overnight) Ultimately, defining morality is a personal matter. You are morally and legally responsible for your own behaviour. Ethics is about having integrity (making consistent principled decisions which are consistent with your values) and being proud of your own actions. You may be persuaded by others, but you should not refuse to make your own ethical judgments. Ultimately, defining morality is a personal matter. You are morally and legally responsible for your own behaviour. Ethics is about having integrity (making consistent principled decisions which are consistent with your values) and being proud of your own actions. You may be persuaded by others, but you should not refuse to make your own ethical judgments.