When law students are asked to articulate legal rules in a persuasive communication such as a brief, they may experience internal tension. Their version of the rule, as framed to benefit a particular client’s position, may be different from the way they would articulate the rule if they were not taking on an advocate’s role. The conflict between those two versions of a legal rule leads some students to wonder if advocacy itself is deceptive, if an advocate’s role requires one to sacrifice ethics for success, and if ancient Greek philosophers were correct when they derided persuasive communication as “trickery and magic,” and criticized advocates for making arguments that were “artfully written but not truthfully meant.” This tension is not unique to students. All advocates must ask themselves whether they can provide a true and accurate version of the law (truthful law) and simultaneously articulate a version of the law that will help their clients. This question speaks to the very nature of law and what it means to be a lawyer. If the question is not successfully resolved, students and lawyers are more susceptible to the cynicism and discontent that permeates the legal profession.
Using Plato’s denunciation of rhetoric and rhetoricians as a starting point, Part I of this Article will explore how the first year of law school may create and exacerbate tension between law students’ desire to advocate on behalf of their clients and their desire to truthfully communicate the law. Part II will explore how law school could resolve this tension with an explicit discussion of legal determinacy and the lawyer’s role in creating law: what students need to hear, when they need to hear it, and where that conversation might be placed within the curriculum. The Article will identify the developing area of professional identity formation as a natural location for an effective discussion, which would ideally occur within the first year of studies. In that discussion, law students can explore a view of lawyers as meaning-makers and truth-tellers: rhetoricians who understand and are faithful to the true essence of a law but are also able to create alternatives within the scope of that true law. Students and lawyers can integrate their own identities into this professional identity, and maintain authenticity in their advocacy.
Laura A. Webb, Speaking the Truth: Supporting Authentic Advocacy with Professional Identity Formation, 20 Nev. L.J. 1079 (2020).