- File Size: 204 KB
- Print Length: 103 pages
- Simultaneous Device Usage: Unlimited
- Publication Date: October 20, 2014
- Sold by: Amazon Digital Services LLC
- Language: English
- ASIN: B00OQTEAB6
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- Word Wise: Enabled
- Lending: Enabled
- Amazon Best Sellers Rank: #1,548,916 Paid in Kindle Store (See Top 100 Paid in Kindle Store)
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But it’s also provocative due to the counter-intuitive notion of thinking of guile in a positive rather than a pejorative way. Dictionary definitions of guile include “slyness and cunning in dealing with others; craftiness,” and “guileful” as “full of guile; deceitful; tricky.” These meanings are explored briefly in Chapter 6, but only after the author has very usefully illustrated his view of them with specific and amusing stories showing the Trickster lawyer in action, utilizing his guile to achieve positive results.
Among its other virtues the book attacks if it does not demolish the notion that the practice of law need be boring or merely technical in nature. Instead, a lawyer approaching various legal issues with creativity – which at bottom is really what Denvir’s “guile” is all about – can often change the whole dynamic. His sort of guile can enable lawyers not only to advance their clients’ interests, but also to “expand the range of alternatives from which the larger legal and political systems can choose in creating society’s future.”
In my view, both the structure and the length of this book provide big advantages for the reader. By stating his thesis up front, Denvir infuses meaning into the many vignettes which follow, enabling the reader to identify the features which they share. And then, because the vignettes themselves raise questions concerning potential misuse of Trickster tactics, the reader is ready and indeed eager to tackle the final two chapters, which constitute the intellectual heart of the book.
And that involves what would have been the 800 pound elephant in the room had Denvir not dealt with it very directly and usefully in the final two chapters of the book, namely, the so called “adversary system.” Because it is this particular system which creates the context and the arena in which creativeness and cleverness and even trickery are so often rewarded, to the benefit of the Trickster’s client. In theory, of course, the clash of opposite views will ultimately produce the most fully developed picture of things. But there are problems.
The first is the unjust result so often produced when the legal representation of the contesting litigants is seriously unequal. In such situations, the author (who even puts a price tag on acquiring first-rate personal injury representation) aptly observes that “the cleverer the attorney the less just the result is likely to be.” Then there is the problem of what Denvir calls “lawyer overreaching,” which occurs when lawyers go beyond the constraints which legal or ethical boundaries impose.
Even worse, perhaps, is the fact that the adversary system often imposes ethical obligations which require the lawyer to take Trickster-like actions which produce dishonest outcomes. One common example (many could be given) is the lawyer who, through skillful (and often Trickster-like) cross-examination, makes it seem as if the witness – in giving his testimony on direct examination – was either ignorant or deceitful. It’s sometimes called “destroying the honest witness,” and it’s done every day.
But what ultimately emerges from considering the various types of harm which clever or aggressive lawyering can cause is that fact that all arise out of the adversary system itself – and routinely occur whether or not “Trickster” tactics are employed. Hence problems involving inequality of representation, lawyer overreaching, or the obligation to “destroy the honest witness” will be resolved only by policing and equalizing the representation involved, not by diluting its creativity. And for this reason Denvir’s Tricksters are essentially without blame for their use of guile and craftiness.
Finally, a book this short is likely one which many readers will purchase because they can master it in a very short period of time. It also enables the reader to spend more time considering many of its implications, and perhaps even to re-read it at a later date, often with real benefit. In this case, author and reader alike benefit from having written and read such a short, original, punchy, and provocative work.
And, perhaps at some later date the author will see fit to step once more into the breach, in order to address a whole variety of issues raised or suggested in this initial salvo. Plus, many other areas of the law – including especially my own (appellate practice) – offer many highly interesting and amusing examples of how the Trickster can creative exploit basic legal doctrine. This reader would certainly respond with delight should he ever find out that Guile II has appeared!
Denvir takes the lawyer joke, the stereotype of what is wrong with lawyers (Why don’t sharks attack lawyers swimming nearby? Professional courtesy.) and turns the joke on its head. Denvir writes, “the public respect and fear lawyers because they sense we use our creativity and craft (and craftiness) to shape the world,” hence the lawyer jokes.
Denvir acknowledges the “lawyer’s unorthodox relationship to truth,” arguing lawyers, being in the “persuasion business,” are “interested in the truth not for its own sake but for its role in winning the case at hand.” Denvir likens the good lawyer to the Trickster found in a “genre of myths and folk tales … that tell of the exploits of a clever opportunist who confronts the world with little more than wit, audacity, and guile. The protagonists in these tales … all display the creative, crafty personality we identify with the Trickster.” For Denvir, the Trickster’s “capacity for creativity, savvy, and cunning or guile constitutes the genius of the American lawyer.” When good lawyers clash over “versions of the truth … the strengths and weaknesses of the respective positions are vetted in a way that” .… “expands the universe of possible “right” answers (enabling) the decision makers to see possible answers they might have otherwise missed because of ignorance or prejudice.”
In chapters 2 through 4, he buttresses his argument with case studies of eight trickster litigators, counselors, and judges, ranging from Gerry Spence, Abe Fortas, and Antonin Scalia. Denvir wrote these case studies well, concisely and precisely depicting the lawyers deploying their trickster talents.
Denvir is too smart and intellectually honest to ignore a reality that “the Trickster identity is in some ways a double-edged sword.” Denvir writes, “along with the ecstasy of professional success, the lawyer must suffer the agony of deciding how to use his or her persuasive power.” Denvir forthrightly faces the fact that any man or woman deploying tools that can “shape the world” confronts Lord Acton’s admonition of the corrupting dangers of power. In too many cases the lawyer jokes are spot-on accurate.
Denvir is pursuing an innovative publishing strategy here. First, he published Guile Is Good as a short e-book. Second, he is continuing to write the book through his blog (go to www.guileisgood.com). As a customer, I applaud Denvir for making his very good book affordable and accessible.
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