Over three decades ago, Sarat and Felstiner published a ground-breaking ethnographic study of divorce client-lawyer conversations. They concluded that lawyers portrayed "a chaotic 'anti-system' in which [clients] cannot rely on the technical proficiency, or good faith, of judges and rival lawyers" but need to rely on their own lawyers' insider status to achieve reasonable outcomes.1 Although lawyers initially described the law and procedure to their clients, they rarely referenced that rational description when explaining what had occurred or would occur in their clients' cases. This law talk may have gradually and ultimately persuaded the clients to reach reasonable settlements, but it did so at the cost of client distrust of and cynicism about the legal system.
Today most divorcing parties do not have attorneys providing full representation for them. Instead, clients represent themselves, often relying on brief advice from attorneys. This raises a question: How do attorneys today portray the legal system to clients attempting to navigate it themselves? Does their law talk fail to link law and procedure to what happens in the clients' cases, engendering cynicism? Are they similarly critical about judges, other attorneys, and the legal process? Do they suggest the clients need to have an "insider" attorney on whom to rely?
This study answers these questions by analyzing thirty-six attorney-client conferences and thirty-nine attorney-student consultations from a brief-advice clinic. These pro bono attorneys present – to both their clients and the law student volunteers – a rational legal system with understandable procedures and fair jurists. They provide candid advice even when the client is unlikely to achieve a particular goal, neutral information about how to make any argument, and encouragement. They never intimate that pro se parties need an "insider" attorney who knows the idiosyncrasies and proclivities of incompetent judges and untrustworthy opposing attorneys.
This Article concludes by theorizing why there is such a sharp contrast between the 1980s study and this contemporary study of "law talk" between attorneys and their clients.
45 So. Ill. U. L. J. 249 (2021)