The Micro-Sociology of Lawyers’ Actions

As an ethnographer I subscribe to Everett Hughes’s view:

I am suspicious of any method said to be the one and only. But among the methods I would recommend is the intensive, penetrating look with an imagination as lively and as sociological as it can be made. One of my basic assumptions is that if one quite clearly sees something happen once, it is almost certain to have happened again and again. The burden of proof is on those who claim a thing once seen is an exception; if they look hard, they may find it everywhere, although with some interesting differences in each case.

It is ethnography that enables us to go inside the black box. It is surprising then that the world of law is often neglected in the ethnographic milieu. Anthropologists engaged with it while studying kinship and exchange systems, seeming to take Durkheim’s idea that contract was at the base of the social division of labor. Yet one of the central features of the law is the court which is an alienating environment.

Thomas Scheffer and his colleagues decided to investigate the world of courts and they looked at American, German, Italian and English courts. Despite being social scientists and with some possessing legal training, they initially found the world of courts one which estranged them by making them feel unwelcome and awkward. How much of this was due to their naiveté and innocence we can only glimpse. Scheffer describes his initial encounter with court staff where he sat in the public gallery with his notebook. This “abnormal” conduct earned him the disapprobation of the court clerk and a move to the press gallery where writing was normally undertaken. It left him, however, with a poor view of the court.

Adversarial Case-Making takes on Scheffer’s journey through the arcane and esoteric world of the English Crown Court. In five chapters Scheffer attempts to make sense of the unworldly world of the court. His method is to take a series of slices in the activity of making a case. Although he cannot hope to provide a complete coverage, he tries to capture a series of moments that frame how lawyers engage in putting together and presenting cases. In Chapter 1 he examines the construction and failure of an alibi in an assault case. Chapter 3 looks at how expert testimonies are pitted against each other. The lawyer’s file and how it coordinates activity is the centre of attention in Chapter 5. In Chapter 7 the moralizing element is invoked as part of the learning process in the developing lawyer-client relationship. In the remaining three chapters Scheffer tries to theorize about his ethnography.

Scheffer starts with Kagan’s idealization of adversarialism as central to the US and UK courts where much of the case, especially in its preparation, is left to the lawyers. Adversarialism in its classic sense is in the UK less strident than the American.  Scheffer points out another dimension to adversarialism, that of the case emerging and being formed over time. As it goes through the procedural steps, it acquires more material—depositions, reports, etc—that create its being.

The two main sites of action we encounter in the book are the courtroom and the lawyer’s office. They differ in that one is public and the other private: the files supply a conduit between the two, so they become almost the obverse and reverse of each other.

We can see this at work in the rise and fall of the alibi in the assault case in Chapter 1. For Scheffer the case has a career that is almost separate from its participants. In this case the assailant was alleged to have head-butted her victim which she denied in her police interviews by stating she was not present. When defense lawyers begin to countermand the prosecution’s case they look for means of undermining the allegations. Statements of non-presence by the accused quickly become co-opted into the process and so are integrated into the procedural memory of the case. As Scheffer simply states: “Linda presented a minimal, but complete alibi” (p. 7). The solicitor’s role is to turn the minimal into a coherent narrative that can be presented in court by the barrister. In this process the alibi is examined more deeply and its inadequacies become apparent. The defense team believed they had the support of a co-defendant who would reinforce Linda’s claim that she was elsewhere when the assault occurred. Unfortunately, the defense found a recording of a police interview with the co-defendant that clearly undermined their belief and led to the fall of the alibi. Even though the alibi made it into court, it came across as feeble and disappeared from the barrister’s final address to the court. The procedure in raising the alibi for the defense lays it open to attack, critique and eventual defeat if the opposition forces are sufficiently strong as they were in Linda’s case. For Scheffer adversarial case-making demands risk-taking and not all risks are foreseeable.

In Chapter 3 we are led into the middle of a case where the accused is charged with indecent assault and his defense is that he was sleep-walking and therefore not responsible for what occurred. Both the prosecution and defense present expert testimony from scientific experts in the field. And for Scheffer this is an important point that it is not the court that requires the expert witnesses but that the parties require them, nevertheless their testimony must be impartial and for the benefit of the court. Experts share similar knowledge bases and training: expertise is also a diplomatic achievement (p. 91). Taking this last point we see that the uncertainties inherent in expert testimony—discussing the general while trying to apply it to the particular—must always be insufficient for the court and so leaves ample space for judicial interpretation of the evidence given.

What do we learn from Scheffer’s study of case-making? It is complicated and complex. It is iterative and repetitive. It is confusing and arbitrary. It is co-production embedded in a history of procedure and convention. Scheffer relies much on the interaction order of the court proceedings to understand what is happening and to see how the parties are making sense of this order. Some of this can be accounted for by things: the way the court is laid out; the manner in which the case file is put together (the types of documents, their order); how stories are told. The division of labour reflects this order in that the solicitor remains close to the file while the barrister articulates the case in court. Taking Scheffer at his word:

Court, file, and story—together with other materials—facilitate the hearing. The hearing as it is…is not feasible by means of direct interaction only. The resources add a sense of stability, historicity, and predictability. They fix past event, specify possible futures and steady expectations….In short, they turn the gathering into a procedural event (p. 188).

Adversarial Case-Making is both an insightful and frustrating book. At times it is over-laden with burdensome theory. If theory is to assist the reader, it should clarify and explain not hinder. Scheffer’s use of the science and technology studies literature is one example of a theoretical enterprise that has done much to clarify the inner workings of institutions. The comparison between the work of laboratories and lawyers’ offices and courts does illuminate.

There are insights into the complexity of putting cases together. Scheffer is able to show us the messiness and partiality of the process and make us wonder how it manages to function at all. It is almost as if the procedure is designed to prevent resolution rather than bring it about. Ideally, the book should be read in combination with others. For example, Steve Bogira’s Courtroom 302 offers reportage of a year in a criminal court where we can view the process from start to finish. Scheffer’s is necessarily episodic probing into moments. For students of the legal process it will add to their knowledge and perhaps help them see how cases are formulated in a more thoroughgoing and analytical way.