Negotiating Justice

reviewed by Judith Z. Gold

What's it like to devote one's legal career to fighting battles that one must often expect to lose, on behalf of the poorest people, in a woefully underfunded and overworked segment of the legal profession? What keeps a lawyer in this thankless role going?

In Negotiating Justice, Corey Shdaimah, a professor of social work at the University of Maryland, describes the experiences of legal services lawyers and their clients at a community legal services clinic. Bearing the pseudonym "Northeast Legal Services," the clinic serves poor people in a medium-size American city. The book is part of an evolving dialogue among advocates and social scientists about how lawyering on behalf of indigent people can sometimes "revictimize" them by adding to their feelings of powerlesssness. Shdaimah believes that much of the existing literature on the topic lacks empirical support, and describes abstract and hard-to-achieve goals. Therefore the author uses social science research methods, including interviews with lawyers who work in legal services programs and their clients to come to an understanding of their relationships.

Shdaimah vividly depicts the ways in which legal services attorneys and their clients collaborate, and the effects these relationships have on both parties' sense of autonomy and power. The attorneys' frustration as they attempt to serve their clients' immediate needs permeates the book. Not only do their clients live in bleak, unchanging circumstances, but the economic and legal systems that shape their lives are seriously flawed.

One weakness of the book is that Shdaimah does not explore the effects that funding and litigation restrictions have had on legal services providers and their clients. In the mid-1960s, Congress established the Legal Services Corporation (LSC) to distribute federal dollars to legal services organizations. In its early years LSC emphasized a mission of law reform. By 1980, LSC distributed $321 million annually, supporting 6,200 poverty lawyers who represented 1.5 million indigent clients - and who filed dozens, possibly hundreds of precedent-setting class actions and other impact cases.

Under President Reagan, legal services came under attack and LSC's funding was cut by 66 percent. Then in 1996, Congress slashed welfare programs, at the same time limiting the work of LSC grantees to represent individual poor people who face everyday legal problems. They could no longer prosecute class actions, seek legal fees for prosecuting public interest cases under "private attorney general" statutes, represent undocumented clients, or address certain controversial issues. The prohibition against seeking attorneys fees blocked a source of needed funding and severely limited legal aid attorneys' leverage and potency, decreasing their adversaries' motivation to settle cases.

Though most of the substantive restrictions remain, the appropriations bill passed by Congress for fiscal year 2010 lifted the prohibition on the recovery of attorneys fees by LSC-funded programs. This may encourage some organizations to begin pursuing impact cases. If that had been true during the period covered by Shdaimah's research, the tenor of the book might have been a bit more optimistic.

Nevertheless, the requirement that legal services lawyers work within a system whose basic injustices they are often powerless to address is a critical fact of their lives. Negotiating Justice is a compelling glimpse into a world that most lawyers never visit.

Judith Z. Gold is a staff attorney at the Public Interest Law Project in Oakland, focusing on public benefits programs litigation.

---