Courtroom Lessons from the Marshall Movie

Courtroom Lessons from the Marshall Movie

Imagine this. It’s 1941, and the NAACP dispatches Thurgood Marshall to a picturesque Connecticut town to defend a black chauffer accused of repeatedly raping a prominent white socialite, binding and gagging her with strips of her own dress, and throwing her off a bridge into a lake.

The headlines are going crazy. A local white man writes a letter to the editor saying, “we should have hung all n*****s while we had the chance, and trust me it would make the world better.” Imagine what it was like trying to pick a jury in that environment.

Except that statement was not printed in a newspaper in 1941. It’s actually what a white high school student said to an African-American girl on Snapchat in 2017, in the affluent mostly-white suburb where I live and saw the movie Marshall with my wife this past weekend.

So, yeah, you could say the movie is still relevant 76 years later.

But don’t go see Marshall like it’s homework or some rite of atonement. What makes it a great movie is that it’s a classic Hollywood courtroom drama, spiced up with some odd-couple buddy-cop flavor. The fact that it also serves as a sort of origin story for the most successful civil rights lawyer of the 20th century is icing on the cake.

On the Five Minute Law Movie Scale, I give it 0.4 hours (that’s on a scale of 0.1 to 0.5 hours).

Granted, I’m a trial lawyer who loves stories from the civil rights movement, so they had me at the preview. Chadwick Boseman could have made any half-way-decent movie about the sensational Joseph Spell trial, and I would have been hooked.

But Marshall was even better than I expected, and one reason is that the courtroom scenes were relatively realistic (by Hollywood standards). In fact, I took away from it some practical lessons on how to be a better trial lawyer. Here are nine of them.

*SPOILER ALERT: These tips contain minor plot spoilers. But if you’re like my mom, who figures out every plot twist in the first 15 minutes of a movie, then I’m not really giving much away.

1. Clients don’t always tell you the whole story

I’m sure Thurgood Marshall  believed all defendants have a right to counsel, but a key part of the NAACP’s legal defense strategy was to focus on defendants they believed were actually innocent. This was important to the overall political strategy and to fundraising.

So, one of the first things Marshall (Boseman) does is interrogate his new client, Joseph Spell (Sterling K. Brown), to assure himself that the man is actually innocent. But would you believe that Spell doesn’t tell Marshall the whole story in that first interview?

More about that later.

2. Don’t rely too much on stereotypes for jury selection

On paper, she’s a terrible juror for the defense: a white woman who grew up in North Carolina and now rubs elbows with Connecticut high society. Local defense counsel Sam Friedman (Josh Gad) is ready to strike her, but Marshall says not so fast. She’s an educated woman with a mind of her own, her body language towards the “Yankee” prosecutor showed some hostility, and she likes you, Marshall tells Friedman. Plus, Marshall has a hunch this lady may know things about the victim, Eleanor Strubing (Kate Hudson).

The result: the white socialite gets on the jury. She even becomes the forewoman.

When you have no other information about a juror, you may have to fall back on demographic profiles, but jury consultants say that attitudes about case-specific issues are a better guide than stereotypes. And of course, it never hurts if a potential juror likes you.

3. Some things are better left unsaid

Mrs. Strubing strangely claims that after her chauffer threw her over a bridge into the water, he threw rocks at her. So, when Friedman cross-examines the local police captain who inspected the scene, he asks whether any rocks were found on the bridge. The captain can’t recall.

Friedman then dumps a pile of pebbles on the prosecutor’s table. Would you call these pebbles or rocks, Captain? The witness eventually admits they are pebbles, prompting chuckles from the jury.

The unsaid part: the fact that Marshall collected the pebbles at the scene. The defense never offers any witness to lay a predicate that the pebbles came from the bridge.

But they didn’t have to. In the words of Hall & Oates, Some Things Are Better Left Unsaid.

4. Save that killer impeachment point for closing argument

The examining physician testifies that skin was found under the victim’s fingernails, but there’s a problem: there’s nothing in his examination notes about that. When Friedman brings up this point on cross, the doctor is ready with an excuse. My wife took the notes, he says, and she neglected to include that fact. And then the doctor drops a bombshell. It was a black man’s skin under her fingernails.

On the next break, Marshall berates Friedman for falling into a trap.

Imagine if Friedman, instead of bringing up the point during cross examination, had waited until closing argument to point out to the jury that the doctor’s notes said nothing about skin under the victim’s fingernails. Then it would be too late for the doctor to try to explain away the glaring omission.

5. You can do it if they don’t object

In law school, I had a trial advocacy instructor (now a judge) who told a great story about defending a police officer accused of assault. He started slapping himself on the head with the alleged weapon in front of the jury, causing himself no injury. The students couldn’t believe that was allowed. The instructor’s point: it was allowed because no one objected.

The defense team in Marshall does a similar demonstration. Mrs. Strubing claims she never screamed, even when a police officer was only a few feet away, because she was gagged. In front of the jury, Marshall puts the gag in Friedman’s mouth and pulls it tight, asking Mrs. Strubing if he has it right. Friedman then belts out the loudest, longest scream you can imagine. Point made.

Can they do that? Well, no one objected.

6. Bring up your client’s baggage before the other side does

Mr. Spell is not the ideal defendant: he abandoned a wife and two kids in Louisiana, got dishonorably discharged from the Army, and got fired from his last job for stealing. So here’s what you’re going to do, Marshall says to Friedman, you bring up all those bad facts when you get Spell on the stand. Don’t give the prosecution the chance to do it first.

Friedman does exactly that, getting Spell to admit his checkered past before the prosecutor can ask a single question.

As I wrote here, if you know there are bad emails from your client, don’t try to hide or ignore them. Usually you’ll only make it worse. What was true in 1940 is true now: you look better if you freely admit your bad facts.

7. Be careful with open-ended questions on cross examination

When prosecutor Loren Willis (Dan Stevens) gets his crack at Spell on cross examination, he unloads on Spell’s history of lying. Then, after setting up Spell as a habitual liar, he goes for the jugular with his key question: if you’re innocent, then why did you lie to the police about what really happened?

But the question backfires. Marshall has prepared Spell to knock this one out of the park, and Spell does it. The prosecutor is so shaken, he does the only thing he can think to do and asks the judge to strike the answer. After a long pause, the judge gives his ruling.

Conventional wisdom says you only ask leading questions on cross. That advice is not always realistic; sometimes you just have to ask an open-ended question. But the prosecutor’s blunder in Marshall is a good reminder of why using open-ended questions on cross is dangerous.

8. Persuasion requires meeting the audience half way

When Spell answers the prosecutor’s key question, you sense that the tide is turning. But the defense still has to persuade the jury in closing argument. Over dinner, Marshall tells Friedman what to say in closing.

Throughout the movie, we’ve seen Marshall going on the offensive, so we’re bracing for an all-out assault on Mrs. Strubing’s credibility. But Marshall understands that Friedman is not going to persuade the all-white jury by portraying the white victim as a bad person. Instead, he crafts the argument to get the jury to feel sorry for her (with obvious echoes of To Kill a Mockingbird).

Sometimes persuasion requires accepting the biases of your audience and crafting an argument that appeals to their world view, not yours.

9. Get a non-lawyer’s opinion about the big picture

Boseman portrays Marshall as a supremely self-confident young lawyer who already knows what he’s doing (prompting friend Langston Hughes to quip, “I’d say you have enough confidence for all of us”).

But it’s a non-lawyer who helps Marshall discern the key to the case. Early on, the wife of the local NAACP leader asks Marshall if he really thinks Spell is innocent. “Why would a woman lie about something like that?” she asks.

It is only when Marshall reflects on that question that he realizes his client hasn’t told him the whole story. That’s when he really figures out how to defend the case effectively.

When I get a new case, I like to describe the big picture to my wife, daughter, or another family member. Hearing a non-lawyer’s take is a great way to gauge how a jury is likely to react. That’s just as true today as in 1941.

Some things haven’t changed.

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head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Top 5 Most Smug Areas of Law Practice

Top 5 Most Smug Areas of Law Practice

Ever notice how there are some areas of law practice you love to hate? If you’re honest with yourself, it’s just based on envy. But still, there’s something about the lawyers in that field that is just so . . . smug. Here are the top five offenders.

5. Bankruptcy

I have a little experience with litigation in bankruptcy court, “enough to be dangerous” as they say, and that’s enough to know that bankruptcy-world is its own universe. So, lawyers who know bankruptcy inside-out have a big advantage.

As if that wasn’t irritating enough, bankruptcy is the quintessential counter-cyclical practice area. When a recession hits and other billable work dries up, bankruptcy practice is booming. And the bankruptcy lawyers can barely conceal those smug little smiles.

4. High-Stakes Plaintiff’s Contingent-Fee Litigation

Not sure if this is really a “practice area,” but you know the kind of lawyer I’m talking about. Flies to depositions in a private jet. Wears cowboy boots made of some kind of exotic game. Probably owns a yacht and a Lamborghini. And if he’s really likeable, it’s that much worse.

3. Tax

In my 20 years doing a fairly broad business litigation practice, I’ve always been up for learning a new substantive area of law, but I draw the line at tax law. I’m not even going to touch it. And many of you are just like me. That means if a real tax issue comes up, we have to go to one of a handful of tax specialists for help. And they know it.

2. Appellate

No explanation required.

1. Patent Prosecution

Picking this over appellate was a close call. Yes, it’s easy to resent those appellate lawyers who were the smartest kids at their elite law schools, clerked for federal judges, and then had to agonize over which big-name law firm to join.

But think about how you feel when you see a lawyer profile like this: undergraduate degree in Engineering, Ph.D in Molecular Biology (is that a thing?), J.D. from a respected law school, handles patent prosecution for large high-tech companies. You know that lawyer is basically printing money.

Ok, yes, he probably had a lot of student loan debt, but it was paid off years ago. And while he used to work at a big firm with high overhead, now he’s a partner at a little boutique in the suburbs with cheap rent.

Smug as a bug in a rug.

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head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands. These are his opinions, not the opinions of his firm or clients. 

He actually kind of likes appellate lawyers. But not tax lawyers. Nobody likes those guys.

Agree on These Litigation Rules to Level the Playing Field

Agree on These Litigation Rules to Level the Playing Field

TexasBarToday_TopTen_Badge_VectorGraphicThe “Fiver Rules” Recognize the Reality of Modern Litigation Practice

WARNING: Typically, I try to write posts that will interest lawyers and non-lawyers alike. But this post is for attorneys only, particularly Texas attorneys. If you don’t have a “JD” or an “Esq.” after your name, DO NOT READ THIS. It is “inside baseball” exclusively for us lawyers.

The high-powered litigation firm Susman Godfrey popularized the practice of “Trial by Agreement,” a process where lawyers on both sides of a lawsuit agree on certain procedures up front to minimize gamesmanship and unnecessary discovery disputes.

This was an admirable goal, but as a practicing Texas litigator, I find that the suggested stipulations on “Trial by Agreement” don’t always match the reality of modern litigation practice. Having closely observed the way Texas lawyers actually handle lawsuits, I propose that readers of Five Minute Law agree on the following “Fiver Rules” for Texas litigation.

  1. Every response to a written discovery request must begin with three pages of detailed “general” objections. If the responding law firm is from California or New York, the requirement is increased to five pages. These general objections must state that they apply to every request, but most of them must not actually apply to every request.
  1. In state court, the response to each request for production must include an objection that the documents are privileged. Texas Rule of Civil Procedure 193.2(f) says that the responding party should withhold privileged documents, not object to the request, but the parties will be required to ignore this rule.
  1. Contention interrogatories must ask for “all facts” supporting the responding party’s contentions. Texas Rule of Civil Procedure 197 is clear that phrasing a contention interrogatory this way is objectionable, but the requesting party must ignore this rule. Conversely, an interrogatory asking for the basic factual grounds for a claim in a party’s pleading must be met with the objection that it improperly requires “marshaling evidence.”
  1. The “conference” requirement for discovery disputes may be satisfied by stating to opposing counsel in writing that all of his objections are unfounded. The statement must be in the form of a letter attached to an email to emphasize its seriousness. Alternatively, the procedure for resolving discovery disputes will be a conference call with at least three participants on each side. The lead lawyers are expected to use the conference call to train their associates on how to show the lawyers on the other side how tough and smart they are.
  1. Motions for summary judgment will be decided based on which side brings a larger binder of documents for the judge. If the binders are the same size, the tie-breaker will be which side has more PowerPoint slides.
  1. Every document produced in discovery must be designated “Confidential – Attorneys’ Eyes Only,” regardless of actual confidentiality. This includes documents found on the internet and copies of pleadings from publicly available court files.
  1. No one is allowed to smirk or make a sarcastic comment when a lawyer interrupts a difficult deposition question to “confer on a privilege issue.” If there is no plausible reason the question would raise any privilege issue, the remedy for the questioning lawyer will be limited to resuming the deposition with a snarky comment like “now that you’ve had a chance to confer with your lawyer . . .”
  1. The parties stipulate that every witness met with his lawyer five times for a total of 20 hours to prepare for the deposition. How many hours of your life have you spent listening to detailed deposition questions about who the witness met with, where, and for how long to prepare for the deposition? How many times has this questioning resulted in discovering a fact that will make any difference whatsoever at trial? This stipulation will save time for everyone.
  1. Each side’s first request for production will include a request for every document generated by the other side’s expert witness. Never mind that the “new” Texas discovery rules (which are now almost 20 years old) provide for only two exclusive methods of obtaining discovery about testifying experts (read Rule 195.1 if you don’t believe me). Why waste those forms your firm has been saving since the Reagan administration?
  1. In federal court, the defendant must file a motion to dismiss raising every possible factual defense to the plaintiff’s claims. A lot of court opinions say the judge should decide a motion to dismiss based only on the facts alleged in the plaintiff’s complaint. Those courts obviously do not appreciate the number of billable hours that a thorough motion to dismiss can generate for the benefit of both sides.

Agreeing on these rules up front will level the playing field for everyone. Nerds who take the Rules of Civil Procedure seriously will no longer be at a disadvantage. If the judge reprimands a lawyer for following one of the Fiver Rules, it will be socially acceptable for that lawyer to point at opposing counsel and say “he started it!”

And if you are a non-lawyer who has gotten this far and is now saying, “I wish I had that five minutes of my life back,” all I can say is, “you were warned.”

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head-shot-photo-of-zach-wolfeZach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Austin, Houston, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Essential MLK Day Reading for Lawyers and Other Humans

Essential MLK Day Reading for Lawyers and Other Humans

Script Idea for New Courtroom Drama

For this Martin Luther King, Jr. Day, I’ve got a movie idea to pitch. Picture this. A racist white sheriff rules his county in the Jim Crow South with an iron fist. A teenage white girl falsely claims she was raped by a black man. An all-white jury convicts on the flimsiest of evidence. It is very likely the young woman was not assaulted at all.

You think it’s been done before in To Kill a Mockingbird? Well I’m going to spice it up for an audience of millennials. Though undeniably gripping, the courtroom drama in the Gregory Peck classic was, sadly, a fairly ordinary story. An all-white jury convicts a wrongfully accused African-American man of raping a young white woman in the segregated American South? No big surprise. The only parts that are at all hard to believe are that a small-town white lawyer would mount a serious defense of the case, and that the defendant would actually make it to trial without getting lynched.

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I’ve got a book recommendation for MLK Day

My movie will be wilder, crazier, more dangerous.  Instead of one accused black man, there will be three. One of the accused men will not even be in the same county when the “crime” occurred.  Instead of a no-name small town lawyer, the lead defense counsel will be a famous civil rights lawyer. Instead of one trial, there will be two, and in between the two trials the case will go all the way to the U.S. Supreme Court.

Action and danger? Imagine this. In the opening scene, the civil rights lawyer runs from the courthouse and jumps in a car that speeds out of the county with angry Klansmen in hot pursuit. Sheriff’s deputies beat false confessions out of two suspects, but a third refuses to confess. In between the two trials, the racist sheriff picks up two of the accused from prison, pulls over to the side of a country road in the middle of the night, pulls a gun, and then . . . well I don’t want to spoil it.

I know, it sounds too sensational. But this story is real. You can read it in Gilbert King’s Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America, which won a Pulitzer Prize. If you care about the American civil rights movement, you will want to read this book. If you are a lawyer, you will enjoy learning how Thurgood Marshall and his colleagues handled the actual nuts and bolts of defending three wrongfully accused men under the most difficult conditions. If you are a trial lawyer, you absolutely must read this book.

You can read reviews of the book to find out more details about the story. Here are just a few of the broader points I took away from this riveting account of a chilling episode in American legal history.

Thurgood Marshall, Super Lawyer

I knew that Thurgood Marshall was a pioneering civil rights lawyer who won the landmark Brown v. Board of Education case and went on to serve as the first African-American justice on the U.S. Supreme Court. But before this book I did not realize that Marshall was one of the best trial and appellate lawyers in the country. I pictured the young Thurgood Marshall as a political activist who happened to be a lawyer. But Devil in the Grove shows that Marshall was a lawyer’s lawyer, a top-notch practitioner who wrote meticulous briefs and loved to argue cases.

Marshall was also a shrewd strategist who carefully chose the cases the NAACP Legal Defense Fund took on. In the Groveland case, the goal was not only to save three innocent lives, but to set up a legal challenge to a system that denied due process based on race.

A System Built on Dishonesty

Aside from the obvious injustice of the state-sponsored discrimination that reigned in the South until the 1960s, the most striking feature of the system was its fundamental dishonesty. The basic legal problem for southern segregationists was the 14th Amendment. (Remember that one? We had to fight a civil war to get it.) It guaranteed due process and equal protection of the laws, and it was the supreme law of the land.

secondtrial2
The defense table in the second Groveland trial

So ultimately, the law was on Thurgood Marshall’s side. This meant that openly defending racial oppression was not a viable long-term strategy for defenders of the racist status quo. They had to pretend that African-Americans actually had civil rights. They had to maintain the fiction that black and white schools were “separate but equal.” Brown v. Board of Education’s rejection of the separate-but-equal doctrine was like a collective “come on, man!” from the Supreme Court. Don’t pee on my leg and tell me it’s raining.

Appellate Courts Sometimes Have to Get Real

A related lesson is that appellate courts can’t always take legal arguments at face value. Defenders of the most unjust system can always come up with arguments that have a surface plausibility. For example, when Texas Attorney General Price Daniel and his assistant Joe Greenhill defended Dallas County’s history of all-white grand juries, they could argue with some plausibility that exclusion of blacks from the grand jury was not a denial of equal protection, but merely a result of the fact that the grand jury commissioners did not know any black people who were qualified to serve.

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Thurgood Marshall and colleagues on the steps of the Supreme Court

But this was effectively a lie. Everyone knew the system was designed–formally or informally–to exclude African-Americans. The Supreme Court implicitly recognized as much in Cassell v. Texas, 339 U.S. 282 (1950), when it reversed a murder conviction on the ground that blacks were excluded from the grand jury. One year later, in Sheperd v. Florida, 341 U.S. 50 (1951), the Supreme Court cited Cassell to reverse the convictions in the first Groveland trial. Justices Jackson and Frankfurter wrote a concurring opinion saying they would have reversed based on the failure to remedy prejudicial pretrial publicity of the defendants’ alleged confessions.

Formal Rights Don’t Guarantee Actual Justice

The story of the Groveland trial also teaches a related fundamental point about the law. Formal rights under the law mean nothing if judges and juries don’t sincerely enforce them. When a judge refuses to allow defense lawyers to call to the stand the physician who examined the alleged rape victim, the Equal Protection Clause has not done the defendant much good. When a jury convicts three African-American men based on community outrage and racism, not on solid evidence, the Due Process Clause hasn’t given the defendants much comfort. Favoritism and prejudice on an individual level can make a mockery of even the best-designed institutions.

But these points are way too abstract. At its core, Devil in the Grove is great story-telling.  And it really happened. Hollywood couldn’t make this stuff up.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands. These are his opinions, not the opinions of his firm or clients.

 

Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Political Correctness is a Real Problem, But Embracing Prejudice is Not the Solution

This presidential election year has brought us a lot of talk about political correctness or, to be more precise, the backlash against political correctness, which, as you may have noticed, has helped fuel the rise of a very unlikely major-party presidential candidate.

This is not a political blog, so I won’t bore you with my opinions on the presidential race, but I do want to clarify some things about political correctness and how it relates to lawyers.

Before I run the risk of “burying the lead,” here’s my thesis: political correctness is a real problem (contrary to some commentators on the left), but the antidote to political correctness is liberalism (properly understood), not prejudice (contrary to some commentators on the right), and lawyers have a special relationship to liberalism. More about the lawyer part later.

My conservative readers will bristle at the “liberalism” part of the thesis, but let me clarify. I’m talking liberalism in the broad historical sense, as in “liberal democracy,” rather than the narrower contemporary political sense, as in “Mike Dukakis was too liberal to get elected” (anyone remember him?)

This broader liberalism gave birth to the very concepts of individual liberty and tolerance—concepts alien to most of human history—that we now largely take for granted. The two kinds of liberalism are related, but they are not identical. To make matters even more confusing, contemporary American “conservatism,” at least the intellectual variety, is partly a branch of historical liberalism.

But “political correctness” must also be defined. Unfortunately, the term has become almost generic, now sometimes used to mean any belief system that is rigidly enforced in some group. Originally, political correctness had a more precise meaning. It essentially meant “dogmatic liberalism.” It was also associated with a hyper-sensitivity about any perceived slight based on race, gender, sexuality, etc.

john-locke
John Locke

“Dogmatic liberalism” is in some ways an oxymoron. Liberalism—the broad historical variety—could almost be defined as a rejection of dogmatism itself. John Locke championed the concept of tolerance, which was largely a rejection of enforcing dogmatism of the religious variety. Although tolerance is now sometimes associated with relativism, toleration originally was not based on the position that all moral viewpoints are equally valid, but the idea that you could tolerate even fundamentally wrong viewpoints for the sake of greater goods, i.e. freedom and social harmony.

It is no accident that Locke was also the philosophical godfather of the founding principle of America: “inalienable rights” to “life, liberty, and the pursuit of happiness.” (Jefferson substituted the “happiness” part for Locke’s “property”).

Later, John Stuart Mill became the foremost philosophical spokesman for liberty—an old fashioned word for freedom—especially liberty to express different viewpoints on fundamental issues. So Mill would be surprised to see his liberalism morph into a form of dogmatism.

john-stuart-mill
John Stuart Mill

The oxymoronic nature of “dogmatic liberalism” reveals its great danger. But to understand that, we first have to understand the opposite of political correctness. It has no equivalent label, so I will give it one: “paleo correctness.” Paleo correctness is as old as human civilization. Every society has its basic myths, its “traditional” values, its prejudices and sacred cows. Throughout most of human history these values have been vigorously enforced through social, religious, and political coercion. Racism is perhaps the oldest and most common feature of paleo correctness.

This is not to say that paleo correctness is all bad. Every clan or nation needs a certain amount of paleo correctness to survive, both to maintain internal cohesion and to repel foreign enemies. Moral skeptics are not likely to be first in line to plug the leaking levee with sandbags, or to volunteer for military service.

On the other hand, the danger of excessive paleo correctness is obvious. Paleo correctness can easily become dogmatism and a threat to freedom. This danger is no less present in democracies, as Alexis de Tocqueville recognized when he described the tyranny of the majority.

tocqueville
Alexis de Tocqueville

Political correctness is potentially more dangerous than paleo correctness for precisely this reason. You expect the defenders of paleo correctness to be dogmatic, intolerant, and opposed to free expression. They make no bones about it.

Political correctness, on the other hand, is closed-mindedness posing as open-mindedness, intolerance posing as tolerance, dogmatism posing as skepticism (I stole this last phrase from Prof. Arthur Melzer, who used it to describe moral relativism). Thus, there is a certain element of deception to political correctness. It punishes free expression while pretending to champion freedom.

Political correctness came on the scene in the wake of the social and political upheavals of the 1960s, as liberal baby boomers came to power and started to codify and enforce the new norms that had replaced the old. The foremost—and most controversial—description and critique of political correctness is still Allan Bloom’s The Closing of the American Mind.

What Makes Political Correctness Dangerous

The problem with political correctness was that it sought to impose a rigid liberal orthodoxy in place of the old orthodoxy. Its adherents sought to enforce it with an almost religious zeal. Anyone disagreeing with its tenets was treated as a heretic to be punished and ostracized. If you were against gay marriage, for example, you were not just wrong, you were a bigot expressing a view that was no longer permissible. You might as well be defending the institution of slavery.

Naturally, conservatives heartily rejected political correctness, and in some ways even benefitted from using it as a foil. But how did the left respond to the rise of political correctness? Some denied that political correctness was a real phenomenon, suspecting it was just a bogeyman invented by the right, but this view was not realistic. I was a student on a predominantly liberal northeastern college campus in the early 1990s, and I can attest that political correctness was real, as the rest of America would gradually learn.

Others on the left acknowledged the existence of political correctness but denied that it was a problem. They embraced the new dogmatism as a good thing. But these people were never really “liberals” in the true sense. These were post-modern types more likely to read Nietzsche and Foucault than Locke and Mill. (The story of how the left came to embrace Nietzsche, the most right-wing of the great philosophers, is told in Bloom’s book.)

So how did true freedom-loving liberals respond to political correctness? Some simply cowered. They knew deep down that political correctness ran contrary to liberal values, but they were too fearful of offending the new orthodoxy to speak out against it. But some took a stand against political correctness, recognizing that it was a dangerously illiberal doctrine. Within the universities, Prof. Harvey C. Mansfield, Jr. has been an especially compelling critic of political correctness.

Of course, as political correctness made its way out of universities into American culture at large, the backlash was inevitable. At the risk of pointing out the obvious, the reaction against political correctness reached its peak this year with the selection of Donald Trump as the Republican presidential candidate.

The Peak of the Backlash

Republican primary voters were fed up with political correctness. For them, it was not enough for a candidate to be conservative (could you get any more conservative than Ted Cruz?), or merely to criticize political correctness. They wanted someone who would give political correctness the middle finger.

Trump fit the bill perfectly, both in style and substance. His most enthusiastic supporters were not looking to replace political correctness with freedom and tolerance. They wanted to double down on paleo correctness. (The phrase “double down” has virtually become a cliché as applied to Trump, yet it fits his style perfectly and therefore must be used.) And Trump did not disappoint.

But the paleo correctness advanced by Trump is a new, meaner variety, untethered from the moderating forces of civility and chivalry previously associated with “traditional” community values. Men of my grandfather’s generation had their prejudices, but generally they behaved like gentlemen. Now, not only is it ok to embrace your prejudices, you don’t have to pretend to be civilized about it. You can stoke the fires of traditional prejudice while simultaneously telling crude sexual jokes with Howard Stern.

This reinvention of paleo correctness is of course the wrong answer to political correctness. The problem with political correctness is its rigid dogmatism. Just as the answer to the old dogmatism was not to replace it with a new dogmatism, the answer to political correctness is not to embrace an even more prejudiced version of paleo correctness. Freedom and tolerance, not threats to loosen the libel laws, are the right antidotes to political correctness. Similarly, the antidote to the hyper-sensitivity of political correctness is civil disagreement (and a healthy sense of humor), not hurling even cruder insults. In short, the answer to dogmatic liberalism is true liberalism.

This is not necessarily to say that liberalism is the highest philosophical expression of the truth about human nature and politics, but good luck trying to build popular support around say, Aristotelianism. Considering the modern dangers of totalitarianism and nuclear weapons, liberalism will have to do.

So What Does This Have to Do With Lawyers?

Lawyers in particular have a special role in defending individual liberties and tolerance. If Trump somehow succeeds in imposing a religious test for entry into the country, we know who will be the first to challenge it. Just ask the general counsel of the New York Times. He was the one who responded (here) to Trump’s threat to sue for reporting—reporting!—that two women made some very specific allegations of sexual assault. Ultimately, rights like free speech and religious freedom—and yes, even the right to bear arms—mean little if they are not legally enforceable rights, and enforcing legal rights requires lawyers.

But what kind of lawyers will defend the unpopular or persecuted? The legal profession is unique in having a very specific ideal that is embodied in a single fictional character. His name is Atticus Finch. He is the personification of defending individual rights and the rule of law against the forces of prejudice, bigotry, and lawlessness. Liberalism is uneasy with the ancient notion of virtue, but Atticus Finch’s liberalism is his chief virtue.

Part of what makes Atticus Finch a compelling ideal is that he is essentially apolitical, and therefore he can appeal to lawyers across the political spectrum. He is not an outside agitator, nor is he a community activist. He has no apparent political agenda. He makes no claim to be a Thurgood Marshall taking on a test case as part of a larger movement. He is simply a small town lawyer who does his job by standing up for what is right and defending the rights of a man who is the victim of community prejudice, i.e. paleo correctness. Politically, Atticus could be liberal or conservative or anything in between; we never find out because it is irrelevant to the story. (Yes, we do learn he’s an excellent shot, but in the 1930s even Democrats still shot guns in the South, so that doesn’t really tell us anything.)

Whatever happens in the presidential election tomorrow, political correctness will still be a problem, and the backlash to political correctness will still be a problem. America will still need liberalism, properly understood, we will still need lawyers, and we will still need Atticus Finch.

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Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Austin, Houston, and The Woodlands.

These are solely his own opinions, not the opinions of his firm or clients.