A Brief Exploration of Courageous Lawyering

-- By EmmaShumway - 06 Apr 2021

An Introduction

Despite the enduring societal value placed in courage, it is difficult to pinpoint an exact definition for this elusive trait. Is courage something that humans can make a conscious decision to work towards attaining? Is it a reflexive shift in personality state over which we have no control? Is it possible to measure our capacity for courage without being thrust into a life-or-death situation? Is it possible to live everyday life as a deliberately courageous person? Our generation is facing a number of unfathomable challenges that require courageous leaders, and lawyers have the knowledge and stature to be such leaders. So how can we become courageous lawyers?

Defining Courage

The Webster dictionary defines courage as the “mental or moral strength to venture, persevere, and withstand danger, fear, or difficulty.” This definition leaves room for the confusion that has surfaced in an etherpad discussion-- we must be careful not to conflate courage with bravery or confidence. While they are overlapping concepts, the philosophical distinction can be found in Aristotle’s take on courage: “the courageous man withstands and fears those things which it is necessary [to fear and withstand] and on account of the right reason, and how and when it is necessary [to fear or withstand] them, and likewise in the case of being bold.” This description illuminates a unique component of courage; not only must it involve overcoming a fear, but it must be the right fear, addressed at the right time, using the right means to do so. While a lawyer may overcome a fear of tainting his reputation when representing an undeserving client, it is unlikely that Aristotle would describe this behavior as courageous. Had John Brown sacrificed his life in favor of slavery, rather than in protest of it, Thoreau would not have painted him as the emblem of courage. However, attaching courage to a moral cause is under-inclusive to a fault, as it erases those who face daily struggles like chronic illness and grief. A glimpse into the psychology of courage helps reconcile this inconsistency.

Psychology of Courage

Courage is the subject of extensive psychological research and psychologists have yet to reach consensus on the precise definition. According to this clinical psychology dissertation and a few other studies (my sources were admittedly limited due to pay-walls), psychologists have identified different categories of courage: psychological, moral, physical, and vital. Those who struggle with chronic physical or mental health conditions exhibit psychological courage; people who choose to be optimistic in the face of adversity embody vital courage; individuals who act in moments of physical danger demonstrate physical courage; and those who stand up for good at risk to their personal well-being exhibit moral courage.

Sources of Courage

While as Winston Churchill put it, “Fear is a reaction. Courage is a decision,” there are undeniable neurological and physical links to courage. The fight-or-flight response is an amygdala-induced automatic release of stress hormones in response to danger that leads to the familiar physical symptoms of adrenaline, such as rapid heartbeat and trembling. As a result, there is debate over the autonomy involved in physical courage. The decision to “fight” rather than flee is not typically conscious. Moreover, the pure fight-or-flight response appears to be limited to situations involving physical danger. As lawyers, we will rarely be faced with circumstances that require physical courage and will likely be met with personal hardships that require both psychological and vital courage throughout our lives. However, the courage that is the most relevant to lawyering as a profession is moral courage. This category is almost certainly a choice rather than a reflex, although we may not know how we will measure up until we find ourselves in a situation that is in itself out of our control. A quick google search reveals the widely held belief that faith in god is the source of moral courage. Although an unappealing concept to many, it is undeniable that there is a pattern of religious belief in the most selfless, courageous leaders like MLK. However, I contend that faith need not be confined to religion. We can derive courage from having faith in people, a cause worth fighting for, or simply ourselves.

Lawyering with Moral Courage

When asked to describe his legal philosophy, Thurgood Marshall said, "You do what you think is right and let the law catch up.” RBG, on the other hand, said that “real change, enduring change, happens one step at a time.” William Kunstler’s monologue depicted in the Trial of the Chicago 7 carried the drama of a fictional Hollywood script, but the words were historically accurate: “If I have to lose my license to practice law and if I have to go to jail, I can’t think of a better cause to go to jail for and to lose my license for than to tell your Honor that you are doing a disservice to the law in saying we can’t have Ralph Abernathy on the stand.” These lawyers all have something in common; they exhibit Aristotle’s definition of courage. Their careers were marked by demonstrations of courage when it was the right time and for the right reason and when there was great personal risk. Whether that be Kunstler’s license, or at times, the risk of physical retaliation to both Marshall and Ginsburg rising to positions of such prestige without being white men, these lawyers took risks because they knew there was something greater at stake. The contrast between Marshall’s progressive legal philosophy and Ginsburg’s more incremental outlook indicates the variety of forms that courageous lawyering can take. As long as the key elements are present: risk or fear, the right reason, strategic timing, and faith in the mission of your work, moral courage can be found. The key to courageous lawyering is thus determining the right reason, and that is a personal decision for another essay.

In execution, I think the most important improvement is to restore all the links that are missing.

Substantively, there is little that can be done to improve the draft on its own current terms. But I think it would be valuable to have a draft that took the subject personally, if you like, experience-near, rather than at the philosophic distance, experience-far.

Draft 2: Courageous Lawyering

An Introduction

Despite the enduring societal value placed in courage, it is difficult to pinpoint an exact definition for this elusive trait. Is courage something that humans can make a conscious decision to work towards attaining? Is it a reflexive shift in personality state over which we have no control? Is it possible to measure our capacity for courage without being thrust into a life-or-death situation? Is it possible to live everyday life as a deliberately courageous person? Our generation is facing a number of unfathomable challenges that require courageous leaders, and lawyers have the knowledge and stature to be such leaders. So how can we become courageous lawyers?

Personal Courage

I wouldn’t consider myself a courageous person. I’m grateful to have never been faced with a situation that required true courage. However, if I scour my memory I can identify a few glimmers of courage, or perhaps the less coveted “bravery.” I remember taking the soccer field as a ten year-old, just moments after learning that my puppy had died of a heart-attack during a routine procedure. When there was an armed man on my middle school campus, I handed out scissors while my classmates sobbed in the closet (not that scissors would have been very effective...) More recently, I made the decision to stand up to my emotionally abusive coach to protect my teammates despite the risk that it would be the end of my playing time (it was). I eventually pushed back against the casual misogynistic comments of my boyfriend’s football teammates in college. I moved across the country to work for an environmental nonprofit after graduation, knowing no one on the west coast. I never have to think twice when I see an animal in danger-- I know I have to act.

Defining Courage

While I overcame some level of personal adversity in these moments, I wouldn’t describe them as moments of genuine courage. This may be because the idea of courage conjures images of tireless civil rights activists putting their actual lives on the line. I envision people living life with terminal illnesses and refusing to give up hope. I think of my peers who grew up in poverty and beat the odds to be here beside me at Columbia. It is difficult not to minimize my own bravery when I am aware of this invisible shield of privilege protecting me at all times. While moot court was a terrifying experience for me, and I am proud of overcoming my fears, it was a sacrifice made for my own personal growth which hardly feels courageous. The Webster dictionary defines courage as the “mental or moral strength to venture, persevere, and withstand danger, fear, or difficulty.” I suppose that my experiences could be deemed courageous using this definition. However, this definition appears to conflate courage with bravery or confidence. While they are overlapping concepts, the philosophical distinction can be found in Aristotle’s take on courage: “the courageous man withstands and fears those things which it is necessary [to fear and withstand] and on account of the right reason, and how and when it is necessary [to fear or withstand] them, and likewise in the case of being bold.” This description illuminates a unique component of courage; not only must it involve overcoming a fear, but it must be the right fear, addressed at the right time, using the right means to do so. I don’t see public speaking as the “right” fear.

Courageous Lawyering

So what does courage look like for me, a privileged white student at Columbia Law? It seems impossible to measure up to the greats, like RBG and Thurgood Marshall. But to my knowledge, William Kunstler didn’t make a name for himself until the moment to do so arrived in the form of the Chicago 7 trial. Maybe courage for the modern lawyer is a bit less glamorous. It might be persistently fighting for a worthy cause and putting in the hours and sweat for a modest salary and incremental improvements until a moment requiring true courage presents itself and then making the decision to fight, rather than run. I’m reminded of the small-town lawyer who is responsible for the Massachusetts v. EPA victory. He was dismissed for years by the Big Greens but kept fighting because of the future he wanted for his daughter. He didn’t have the resources or prestige-- the entire legal theory of that case was the result of pure work ethic. Even less glamorous than struggling for a worthy cause, maybe courage could be as simple as accepting the social consequences that come from not participating in big law culture with grace, and in tuning out the warnings of my classmates about “livable incomes,” taking the risk that they are right. It could mean speaking up when a hot-shot professor demeans my classmate or at least letting them know I am there for them after class. It could even be as inconsequential as refusing to compromise on my personal fashion style to make male colleagues feel more comfortable or bringing up politics in conversation with peers when it feels awkward to do so.

A Conclusion

Even as I list off these examples, I don’t believe that they truly embody courage. This indicates that the key to being a courageous lawyer may be lowering my standards. I will never be Thurgood Marshall and I should be grateful that it is unlikely that my physical safety will be at risk in this profession. I shouldn’t discount the fact that I am going against the tide in not prioritizing money and pursuing a career dedicated to a problem that almost certainly will not be solved in my lifetime. These decisions are not without sacrifices and because I never really questioned this path, I tend to forget that. Moving forward, I will attempt to internalize this final message: making a deliberate effort to be a courageous lawyer is enough, at least for now.

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