Home » Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 4 – Writings of Ray Ybarra, Elizabeth McCulloch, Roel Mangiliman, Myron Dean Quon, Nadia Chiesa, John W. Teeter, Jr., Deborah J. Cantrell, and Michael Diamond

Influence of Rebellious Lawyering on Law Practice and Pedagogy – Part 4 – Writings of Ray Ybarra, Elizabeth McCulloch, Roel Mangiliman, Myron Dean Quon, Nadia Chiesa, John W. Teeter, Jr., Deborah J. Cantrell, and Michael Diamond

Excerpted from Ray Ybarra,THINKING AND ACTING BEYOND BORDERS: AN EVALUATION OF DIVERSE STRATEGIES TO CHALLENGE VIGILANTE VIOLENCE ON THE U.S.-MEXICO BORDER, 3 Stan. J. Civ. Rts. & Civ. Liberties 377 (2007):

“No significa que por lo hecho que no seamos de alli, no podemos ejercer nuestros derechos humanos, si no, los derechos humanos tu lo puedes ejercer en todos lados. – Juan Gutierrez.”

“…I will critique the different strategies I used in organizing against vigilante groups such as Ranch Rescue, Civil Homeland Defense, American Border Patrol, Roger Barnett, and the Minuteman Project. Despite some of the negative aspects of law school, I have to admit that being in the ivory tower allowed me the opportunity to reflect and, more importantly, critique my work and the work of others. Needless to say, when one is working full-time, one seldom gets the chance to sit in a room full of intelligent people to critique strategy and question how individual actions impact larger movements. Professor Gerry Lopez stresses that, ‘[t]hose within the rebellious idea should and frequently do develop both a system of periodic formal evaluation and an attitude of constant critical self-evaluation.’ While I am not a lawyer, I agree that consistent, critical self-evaluation is essential and hope that the following pages will be seen as a formal evaluation of my actions in organizing against border vigilantes.”

“During my first year in law school, I struggled with the question of what kind of lawyer I wanted to be. Initially, I was sold on the idea of impact litigation, probably because it was the only kind of public interest law ever talked about in first-year classes. Soon, though, I became disillusioned at the prospect of real change coming from a court order. I tried direct services at an immigration and community law clinic but quickly became frustrated by working within an unjust system. I scanned a few law review articles and books that put an exciting word in front of the word ‘lawyering,’ and, at first glance, they sounded quite appealing. The articles and books talked about rebellious lawyering, guerrilla lawyering, cause lawyering, facilitative lawyering, progressive lawyering, and collaborative lawyering….”

“…I decided to combine my legal training with non-legal skills acquired in previous contexts, including my studies of past social justice movements. It is this combined approach to creating social change that I applied against the vigilantes; I call it ‘Shotgun Organizing….’”

 

 

Excerpts from Elizabeth McCulloch, LET ME SHOW YOU HOW: PRO SE DIVORCE COURSES AND CLIENT POWER, 48 Fla. L. Rev. 481 (1996):

“For many years, legal academics have discussed how poverty lawyers can participate in empowerment. Using Gerald Lopez’s term, recent writings urge that poverty lawyers engage in ‘rebellious lawyering’ as opposed to ‘regnant lawyering.’ Rebellious lawyers help clients tell their “stories” in their own way, both to the lawyer and, at least sometimes, to the judge. Clients have major responsibility for litigation tasks such as investigation, examination of witnesses, and arguments to the court. Rebellious lawyers recognize that formal legal strategies are not the only, nor necessarily the best, means of problem-solving. They should help clients discover their own problem-solving ability, and engage them in strategizing. Finally, rebellious lawyers should provide community education about law and training for lay advocacy. In all these efforts, advocates should be attentive to the power relations between themselves and their clients; many of these means of empowerment are intended to shift power from lawyer to client as well as to help clients gain power in confronting ‘the system.’”

“Rebellious, empowering practice involves clients, lawyers, and other problem-solvers in identifying appropriate responses to a community’s needs and constructing methods for solving problems. The lawyers do not impose a strict ‘code of roles and tasks.’ The emphasis in rebellious lawyering on really hearing a client’s voice demands individual attention, patience, and time.”

 

 

 

 

Excerpted from Roel Mangiliman and Myron Dean Quon, IN THE MARGINS: HOW MAINSTREAM LEGAL ADVOCACY STRATEGIES FAIL TO FULLY ASSIST ASIAN AMERICAN, NATIVE HAWAIIAN, AND PACIFIC ISLANDER LGBT YOUTH, 19 Asian Am. L.J. 5 (2012):

“Community lawyering provides a legal framework to assist in this inquiry. Also called ‘rebellious lawyering,’ community lawyering is a holistic, empowerment-driven approach to legal advocacy that emerged in response to the failure of traditional methods to consider the systemic causes of community problems, and the lack of collaboration with other actors assisting the same community. Gerald Lopez, one of the pioneers of community lawyering, considers traditional lawyers as holding themselves out as ‘experts’–those who ‘collaborate principally and often exclusively with one another’ and ‘show too little interest in regularly adapting aims and means to what unfolding events and relationships reveal; too little curiosity about the institutional dynamics through which routines and habits form.’ This behavior, community lawyers contend, leads to three problematic areas of traditional lawyering: (1) the interpersonal dominance behaviors maintained by lawyers, (2) the client disempowerment produced by a reliance on litigation-based resolutions, and (3) the inability of legal intervention to create meaningful change in the lives of low-income people.”

 

“In recognition of such critiques, Lopez calls on lawyers to re-imagine their method of problem solving. Lopez casts a rebellious vision, whereby lawyers work within ‘networks of co-eminent institutions and individuals,’ learning from and engaging all other pragmatic practitioners. Instead of extolling the benefit of litigation-based strategies, community lawyers place more importance on organizing, mobilizing, and empowering individuals and community groups. In so doing, community lawyers collaborate ‘with problem solvers of all sorts’–in a way that seeks to liberate their clients from their disempowerment after the need for the lawyer terminates.”

 

“One way to illustrate this philosophy is to understand the poor reputation of lawyers in marginalized communities. These are issues, prevalent in marginalized communities, that community lawyers often grapple with, but traditional lawyers tend to ignore. In The Work We Know So Little About, Gerald Lopez offers the story of Maria Elena–a Latina, low-income, housekeeper, wife, and mother–someone Lopez says, ‘too many of us regrettably have come to regard as unremarkable.’ Pressed about her undocumented status and hopeful that obtaining amnesty would bring greater opportunities for her children, Elena sought attorneys at reputable immigration law firms to file her application. Interestingly, Elena obtained legalization, but it was not through the assistance of her lawyers. It was through a self-help service that Elena’s church led her to, which she felt was an altogether less vulnerable and less intimidating experience than her interaction with lawyers. Elena stated, “[the self-help assistants] kinda knew what we had to hear–you know, what we were going through, what we needed to do. From step one on.’ She attributed her decision against using lawyers to their ‘gouging’ and ‘disorganized’ behavior, as well as their limited capacity to effect change: “‘being on the short end and being on the bottom is an everyday event in my life,’ she says, usually half-smiling. ‘What can a lawyer do about that?’”

 

“Lopez uses Elena’s story as an example of how, oftentimes, individuals (here, women of color) avoid lawyers, not because of a ‘failure to use lawyers and the law,’ but from a feeling of ‘guilt, fear, and heightened sense of destruction’ toward the law. From interviewing many women of color clients, Lopez attributes this aversion to the law to both the economic and social circumstances disempowering Maria Elena, as well as to the intimidating legal field hardened by its failure to train practitioners on how to work with subordinated communities.”

 

“According to Lopez, law schools have interdisciplinary lessons from ethnic studies, gender studies, and psychology to train students on how to better engage ‘Elenas’ but have vastly neglected to utilize them.  For instance, law schools have failed to brand Elena’s commonly shared fear of the law and its lawyers as even worthy of a lawyer’s concern. Looking forward, Lopez calls law schools and lawyers to grapple with interdisciplinary ideas, work with clients and non-lawyers in an accessible way, and thus challenge the professional tendencies that often lead to avoidance of lawyers.”

 

“Upon interdisciplinary study, however, APA LGBT youth appear to struggle in unique ways that reduce access to the judicial system. Depending on the generation and immigration status, one might need language assistance. Assuming participation in local APA and LGBT communities, their unique identity might evidence mutually exclusive, and deficient, support. And in pursuing advocacy, negotiations of intersecting values on public exposure can stunt their empowerment. The intuitive, holistic lawyer views these struggles as sites of legal accessibility and as basic barriers to the courts. The community lawyer seeks to rectify these conditions, and yet, does so acknowledging litigation as a limited or singular strategy toward community empowerment. Through embracing the rebellious lawyering approach, APA and LGBT legal advocates begin to perceive not just how to improve legal strategy for intersectional community but also how to participate in broader community progress.”

 

“Although this article is focused on the crucial and specialized circumstances unique to APA LGBT youth, all legal advocates are urged to begin thinking about the holistic needs of multiple-identity communities. In a nation alive with increasing pluralism, legal advocates must respond to the needs of diverse communities. They must ‘relearn’ that legal work is more interdisciplinary than law schools suggest, that ‘personal failure to use the law’ might have systematic causes, and that the justice system might not comprehend the plight of multiple-identity minorities. In using APA LGBT youth as an example, a broader vision of advocacy that encompasses multiple-identity groups–such as the re-imagined, rebellious notions of lawyering–are better drawn from the margins, and more appropriately served by the legal community.”

 

 

 

 

Excerpted from Nadia Chiesa, THE FIVE LESSONS I LEARNED THROUGH CLINICAL EDUCATION, 10 German L.J. 1113 (2009):

 

“Criticism of traditional legal education is often tied to criticism of the traditional legal profession. In contrast to regnant lawyering is rebellious lawyering, a term coined by American lawyer Gerald Lopez. Where a regnant lawyer individualizes legal problems, a rebellious lawyer sees her clients as belonging to a larger community. Where a regnant lawyer sees a client’s issue only in terms of legal issues and solutions, a rebellious lawyer considers the various societal forces and pressures in a client’s life that may be contributing to or even causing the issue. Where a regnant lawyer relies only upon his or her own expertise, a rebellious lawyer seeks to empower the client.”

 

“Just as rebellious lawyering challenges the traditional model of legal practice, clinical education programs… challenge the traditional model of legal education, pushing students to rebellious learning, in which they can develop a critical consciousness of the role and limits of law. These rebellious learners develop not only the strong analytical and advocacy skills that are required to practice any area of the law but they also develop a real understanding of the impact of the legal system on a section of society that is largely ignored. Bridging the gap between regnant and rebellious lawyering – and between regnant and rebellious learning at law school – has been one of the challenges I have grappled … and one that I am certain to be confronted with in the course of my career.”

 

“While it would be impossible to fully capture what I have learned from this experience, five important themes or lessons have emerged from my work with clients and in the community as well as from my discussions with colleagues.”

 

“Lesson 1: You’re a (student) lawyer – so what?”

 

“In the classroom, the students listen to the professor and in practice, the clients listen to the lawyer; traditional legal education and practice depend on this expert-layperson relationship…. we spend three years learning to synthesize lengthy cases into succinct ratios and apply those rules to facts to determine the likely outcome. Law plus facts – that is the equation that matters at law school – and we learn to cook the books to make the law work in favour of the facts of a particular case…. As law students, we learn that the lawyer provides the solution to the client.”

 

“One of the hardest lessons I learned…was that this formula does not always work.”

 

“….I have become very aware of the power relationship that is created between lawyer and client. Just as some clients walk in with a definite idea about how law works, many others expect that I will have all the answers for them….”

 

“I have experienced first-hand the different approaches to lawyering, whether labelled “regnant” and “rebellious” or “traditional” and “community-based”, and the benefits or drawback of each….”

 

“Lesson 2: Learning clinic or legal clinic?”

 

“The pedagogical structure of law school not only affects what we learn, but also what we do with our education…. Students participating in clinical legal education can pursue a commitment of social justice and develop ‘knowledge how’ but during the course of this opportunity, will confront some of the ethical concerns associated with these types of programs….”

 

“Constantly asking ourselves this question will not lead us to a definitive answer, but rather a critical awareness of the dichotomous nature of this work which will help us to recognize the power and privilege we have as lawyers and to challenge the hegemonic assumptions of our profession.”

 

“….I learned how we often fail to even recognize the barriers that exist. If we cannot recognize the barriers, how can we move toward removing them and opening the justice system to all citizens?”

 

“What then is the alternative to the legal white knight? Well, the danger is that students can become mere tourists in a community that is new to them….”

 

“We work with established community organizations and groups not as the ‘expert’ coming in to fix the problem but as another member of the team, willing to put our skill set to use in the way that the community feels would help. While we offer a service to the community, we must learn to refrain from imposing a vision of how clients should use that service.”

 

“Lesson 3: The outsider looking in – or the insider looking out?”

 

“I have become aware of the role that ‘social’ plays in social justice…. ‘The tendency of law school to ignore political, economic, and social values and perpetuate has been blamed for helping to perpetuate idealized notions of fairness that fails to accord with the realities of poverty and discrimination’….”

 

“My year… has enabled me to develop an awareness of the multidimensional social, political and economic factors which influence law and, more significantly, the lives of those people who are most frequently embroiled in the legal system. I have developed this awareness through my work with clients and the community, and through taking the time to reflect on and discuss these experiences with my colleagues.”

 

“I was still highly aware of my status as an outsider at the event, no more so than when I was approaching people on the street and at the bus stop to collect signatures for an open letter to the local police department. The difference this time, however, was that through my work, I had developed a deeper understanding of the dynamics in the neighbourhood….”

 

“Lesson 4: Law is rational, not emotional – or is it?” 

“Both the form and substance of a legal education reflects an underlying rationalist model of knowledge that law can be ‘objective, certain and universal.’ The relationship between professor and students in the classroom is, largely, that of expert and novice; the professor imparts his knowledge to the student, who is the ‘theoretical spectator.’”

 

“In sharp contrast, proponents of clinical education emphasize the contribution of personal experience and reflection in the learning process. Here, emotional and intellectual learning and development are interdependent. Learning is a continuous process, constantly changing and evolving based on new experiences.”

 

“One of the skills… is to look beyond the obvious labels (‘single mom’, ‘youth with a criminal record’, ‘drug addict’) that may be applied to clients and see them as individuals. In the spirit of rebellious lawyering, we must maintain an awareness of the collective issues that our clients face but we must not jump to lump our client in with that group….”

 

“Lesson 5: Quick, get uncomfortable.”

 

“Generally, I would argue that law students are, for the most part, used to being comfortable. We are comfortable in the sense that we have enjoyed some degree of privilege that gave us access to the opportunities that led to law school. We are also comfortable in the sense that we are used to having control over our environment, our experiences and our interactions. Law school is a largely solitary experience, where competition is prized over collaboration and students are trained to work in an individualistic and adversarial legal system….”

 

“In their article about the University of Windsor’s legal aid clinic, Voyvodic and Medcalf suggest that the ‘subject-matter of clinical legal education (i.e., poverty law), its unstructured nature and its closeness to inter-personal dynamics is unsettling to mainstream faculty accultured to ‘isolationist’ mode of behaviour within legal education.’”

 

“For Quigley, social justice lawyers must learn to be uncomfortable because ‘those who practice social justice law are essentially swimming upstream while others are on their way down.’ I would add that for a law student working in a legal clinic, the work that we do, and the places where we do that work, also forces us to go beyond our comfort zone.”

 

 

 

 

 

 

Excerpted from John W. Teeter, Jr., INTO THE THICKET: PURSUING MORAL AND POLITICAL VISIONS IN LABOR LAW, 46 J. Legal Educ. 252 (1996):

 

“The Vision of ‘Rebellious Lawyering’: Although Gerald P. López, like [Duncan] Kennedy, uses the unlikely metaphor of the lawyer as rebel, his focus is far different. López has emphasized the need to depaternalize the practice of law by working with clients to develop their own empowerment. López asserts: ‘The reorientation of a lawyer’s work most characteristic of today’s rebellious idea involves what I call ‘teaching self-help and lay lawyering.’ Such teaching entails the participation of lawyers in helping everyone (themselves included) to see that the skills they have already developed to cope with problems in everyday life can be used to solve less familiar problems—that their stock of stories and storytelling techniques may be extended beyond the world they know best. In particular, if people subordinated by political and social life can learn to recognize and value and extend their own problem-solving know-how, they (and others, not coincidentally) may gain confidence in their ability to handle situations that they would otherwise experience as utterly foreign and unmanageable, with or without a lawyer as representative. Helping people to see that they can identify, understand, and contribute to solving their own and others’ problems is one way of helping them gain more control over the life we share. By reorienting their practice around this view of problem-solving, [rebellious lawyers] hope to help those subordinated in this world to play an increasingly potent role in the struggle to shape our common social reality.’”

 

“López’s vision has particular resonance in labor law, where many workers are unrepresented by counsel and even unions often rely on unlicensed advocates to handle arbitrations, negotiations, and other ‘legal’ matters. Furthermore, López can encourage students with the thought that many of the essential tools of lawyering—such as common sense—are not dependent on a formal degree, much less law review status at a top-tier school.”

 

 

 

 

 

 

Excerpted from Deborah J. Cantrell, A SHORT HISTORY OF POVERTY LAWYERS IN THE UNITED STATES, 5 Loy. J. Pub. Int. L 11 (2003):

 

“Gerald Lopez posited a vision of lawyering similar to White’s which he called rebellious lawyering. Like White, Lopez was a poverty lawyer. In his book, Rebellious Lawyering, Lopez used vignettes of various poverty lawyers in practice to illustrate his charge that well-intentioned poverty lawyers generally did not actually listen to their clients’ stories, understand their clients’ backgrounds, or consider the skills and power that their clients’ possessed. ‘Regnant’ lawyers, using Lopez’ label, were so focused on how a problem could be cast as a legal argument to establish or enforce legal rights that they failed to see or understand the larger social environment in which their clients lived. Thus, the legal solution crafted by a regnant lawyer distanced the client and cast the client always as a victim. As another rebellious lawyer has described it: ‘[Regnant] [l]awyers see clients as persons to be helped, as powerless persons who need to have problems solved through the intervention of the lawyer and her skills.’”

 

“In contrast, according to Lopez’ vision, rebellious lawyers seek to become a part of the community in which they practice, to help the community organize and develop its members’ own voices of protest and advocacy. Rebellious lawyers move from an elitist position, where the attorney determines the appropriate legal strategy even before the client has told the specifics of her story, to a background position, where the lawyer acts as facilitator and lets community members determine the scope of the problem and design the appropriate solution. The rebellious lawyer steps in to give technical help and advice, but does not assert control over the process.”

 

“Third-tier lawyering and rebellious lawyering sounded new to most legal services attorneys in the 1990s….”

 

“Rebellious and holistic lawyers face the same situation as their legal aid society colleagues faced a century ago: the need for individualized services is enormous, and the daily pressure on a poverty lawyer to provide the most immediate emergency legal help is severe. Poverty lawyers in field offices have an unending stream of clients in the waiting room, many of whom could be sent away with a quick-fix legal solution. While not making any systemic change, this would at least provide some immediate individual relief – ‘rescue lawyering,’ as one commentator has labeled it. Organizing and mobilizing a community and making an effort to learn fully about community problems takes time and requires lawyers to turn away individual client work; something difficult for well-meaning lawyers hoping to help everyone. It requires them to move out of the roles for which they were trained in law school.”

 

“In partial response to the need for adaptive strategies, poverty lawyers have also considered new ways of working with their clients. Lucie White and Gerald Lopez have argued that poverty lawyers should immerse themselves in their clients’ communities and not assume that lawyers are in the best position to determine effective advocacy strategies. By becoming a more integral part of the client community, lawyers will have more complete and rich information on which to formulate their advocacy strategies. This approach does not resolve the debate between systemic advocacy versus individual client advocacy, but it does allow a poverty lawyer to better assess how a client’s or community’s goals might best be achieved.”

 

 

 

 

 

 

 

 

Excerpted from Michael Diamond, COMMUNITY LAWYERING: REVISITING THE OLD NEIGHBORHOOD, 32 Colum. Hum. Rts. L. Rev. 67 (2000):

 

“Rebellion Against Regnancy:  The ‘rebellious” lawyer described by Gerald López is perhaps the most influential model of the collaborative lawyer to emerge from the resurgence of scholarship in the field of poverty law. López developed his model as an alternative to what he perceived to be the dominant mode of poverty lawyering, which he characterizes as ‘the regnant idea of lawyering for the subordinated.’ López asserts that the regnant ideal, which he believes many poverty lawyers have adopted, often serves the ambitions of lawyers more than the needs of clients. This view of lawyering is inherent, he says, in legal training, ‘both in law schools and on the job, [[and] presupposes a world in which this particular picture of lawyering seems almost ‘natural.’’ He criticizes the elitist, formalistic and apolitical nature of the regnant model in which all problems are seen as “legal” and subject to intervention by the attorney, a trained technical expert.”

 

“The rebellious model, on the other hand, describes a means of reversing the subordination of clients and client interests by changing the method and scope of a poverty lawyer’s practice. This is accomplished by attempting to eliminate (or at least to reduce) the distance between the lawyer and the client and by encouraging the lawyer to consider non-legal courses of action in client problems. Thus, rebellious lawyering entails working directly ‘in the lives and in the communities of the subordinated themselves.’ It requires lawyers continually to evaluate the likely interaction between legal and ‘non-legal’ approaches to problems. They must … know how to work with others in brainstorming, designing, and executing strategies aimed at responding immediately to particular problems, and, more generally, at fighting social and political subordination. They must understand how to be part of coalitions, as well as how to build them …. They must appreciate how all that they do with others requires attention not only to international, national, and regional matters but also to their interplay with seemingly more mundane local affairs. At bottom, the idea of rebellious lawyering demands that lawyers … nurture sensibilities and skills compatible with a collective fight for social change.”

 

“López portrays this view as that taken by groups in subordinated communities who work with lawyers as part of a broader collaboration in which all participants may express themselves and critique colleagues. Such notions are foreign to lawyers immersed in the regnant idea which imposes unjustifiably limited relations between those working against subordination and those strategies available to wage the fight. It does not permit anyone in the fight, whether lay or professional, to experience others as part of a working team. And it almost laughs off anyone who wants to regard others as co-eminent practitioners.”

 

“López goes on to suggest that the rebellious lawyer might live in the community where he or she works and organize and educate clients to help themselves. Equally important is the education obtained by the rebellious lawyer from his or her clients that enables the lawyer to understand the clients’ inherent worth and the value of their stories and insights.”

 

“López, White, and other advocates of the collaborative lawyering model look toward breaking down the barriers between the ‘professional’ and the client from within subordinated groups. The characteristic of the collaborative model is that attorneys become, as much as possible, a part of the community they serve, and they educate clients to be able to advocate for themselves. At the same time, clients educate attorneys about how to use their skills more effectively to meet client goals.”

 


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s