LESSON # 1: THE LAW IS ABOUT REAL PEOPLE.
Lawyers (and law professors and law students) love debating strategies and tactics and researching case law to develop legal theories. But the law is about more than just an interesting intellectual exercise – it profoundly affects people and the quality of their lives. The law tells a story about who we are as a society, how we view ourselves, and how we view one another. All cases — whether they involve civil rights or some other issue entirely — should remember and consider the humanity behind all the creative legal arguments.
LESSON # 2: LITIGATION DOESN’T HAPPEN IN A VACUUM.
The best legal citations and strategies in the world won’t be successful if the political and educational stars aren’t aligned. Judges are human, and every judicial decision is subject to a political response. So, it’s crucial in a civil rights case for the lawyers and their clients and their supporters to engage in ongoing, thoughtful conversations with the community at large, to flesh out concerns and hopefully garner support for the issue. These conversations are always time-consuming and exhausting, and are frequently contentious and painful – but they are critical to your ultimate success.
LESSON # 3: DON’T FORGET YOUR STATE CONSTITUTION.
In law school you learn that if you’re challenging the constitutionality of a law and you get “heightened scrutiny,” you win — but if you only get “rational basis,” you lose. This may be true under the federal constitution, but the standard and analysis under your state constitution may be different – and might be more promising for your case. Even if your state constitutional provisions haven’t been fleshed out in prior cases, don’t shy away from pushing for an interpretation of the state constitution that is more nuanced than the the analysis under the federal Constitution.
LESSON # 4: EXPECT THE UNEXPECTED.
Sometimes courts decide something completely out of the blue. In the Vermont marriage equality case, we were prepared for a win, and we were prepared for a loss. We were not prepared for what we got: a ruling that gay and lesbian Vermonters were entitled to the “benefits” of marriage but would have to battle in the political cauldron of the legislature to seek the “status” and “title” of marriage. We went from arguing in the court room to lobbying in the statehouse, and ended up with the compromise of “civil unions” for nine years, before the Vermont legislature finally passed a marriage equality law. The lesson: be ready for a curveball.
LESSON # 5: DON’T FORGET TO HAVE FUN – AND DON’T LET EGOS GET IN THE WAY.
Litigating civil rights cases, especially high-profile ones, is hard work. You can’t do it alone – you need co-counsel to divvy up the work. And, you can’t do it well if you aren’t prepared to check your ego at the door and work cooperatively with co-counsel. Put aside your desire to be the “top dog,” and figure which of you is best suited for which task. (If that means you don’t get to argue before the US Supreme Court, so be it; remember that you need to act in the best interest of your client, not in the best interest of your reputation or ego.) A side benefit of this approach: you’ll have a much, much better time.
Purchase The State Of Marriage on DVD here:
You can learn more about Susan Murray’s legal practice here.