The Value of Reflective Lawyering
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Jeannine Winch, Staff Attorney

Even though I may find myself knee-deep in multi-tasking, intakes, and day-to-day problem-solving and communication with clients, I try to make time – even if it’s only the time it takes me to walk back to the office or to travel to our domestic violence intake center in southeast after court that day – to reflect not just prospectively on upcoming cases but retrospectively as well.  While lawyers readily acknowledge the necessity of the former, the “prep work,” it is not always as second nature to take the time after the case has concluded to evaluate and reflect on what just happened.

Recently, something happened in one of my cases that led me to reflect on the tension I sometimes feel between my role as an advocate following the goals that my client has established and acting according to her (or his) wishes, versus my role as a counselor and even protector, that sometimes requires me to manage unrealistic expectations or point out potential negative consequences of my client’s goals.  I may even challenge the means that the client identifies to reach stated goal because I want to ensure that my client is making an informed decision.

The case in question begins with hotly contested cross civil protection orders.  Eventually, the opposing party agrees to dismiss the case against my client.  My client decides not to go forward either.  We discuss the potential advantages and disadvantages of mutual dismissals.  While my client does not want to reconcile with the other party, she believes that they can resolve their dispute outside of court, and that this resolution would be better for their children.  I know that the opposing party has a history of vengeful, manipulative, and even vicious behavior.  The cases are mutually dismissed.

Just two days later, however, my client is arrested in another incident even though the opposing party is the one who assaulted my client.  The opposing party lies convincingly to the police, to the hospitals, to the prosecuting attorney for the government.  New cross civil protection order cases are filed, and they trail the criminal case.  Several months later, my client is acquitted in the criminal case; the civil protection order case against my client is dismissed, and the case in which my client is the petitioner is negotiated.

Overall, the result is good, but I am left wondering whether I could have prevented three new cases from being filed by urging my client more forcefully to have gone forward with the original case.  Could I have more vividly reminded my client of the opposing party’s history of manipulative, vindictive behavior?  Could more forceful advice have changed my client’s decision to dismiss the case?  Did I perhaps hesitate to be more forceful out of a desire not to re-create a situation in which my client felt pressured or controlled?

I trace my habit of engaging in this kind of self-reflection and processing – as well as countless other similar moments of judgment calls and decision-making that inform my reflective, client-centered approach to lawyering – to my clinical legal education experience in the HIV/AIDS Clinic, supervised by Professor Matthew I. Fraidin, at the University of the District of Columbia, David A. Clarke School of Law.

Ultimately, while I firmly believe that it is my client who knows the opposing party best, drives the litigation, and makes the decision whether to continue prosecuting the case, I also feel that it is my responsibility to use my experience and counseling skills to question and confront my client.  I strive in all of my cases to strike the balance between these two competing obligations.

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