WHAT DO LAWYERS DO ON FRIDAY NIGHT?

On Friday, January 29, 2017, at 4:42 p.m. Eastern Time, President Donald Trump issued his executive order concerning immigration. I found the timing interesting. I’m aware of anecdotal evidence that law enforcement officers like to execute arrest warrants on Friday afternoons because doing so often means that that the person arrested will be unable to post bond until Monday. That gives law enforcement time to elicit confessions before the person arrested has a chance to talk to a lawyer. I suspect that the timing of Mr. Trump’s order was not coincidental. I suspect that he and his staff hoped that implementing the order on Friday afternoon would mean that nothing would happen to stop it until Monday.

Preventing legal action against questionable executive acts is not a new idea. In fact, Shakespeare memorialized it in Henry VI, Part II, Act IV, Scene II, when his character Dick the Butcher suggested that when the rebels overthrew the lawful government and came to power, “The first thing we do, let’s kill all the lawyers.” If lawyers can be kept from performing their responsibility to uphold the law, then the rule of law can be defeated.

But that is not what happened on January 29. Instead, as the Washington Post noted, “Hundreds of attorneys descended on U.S. airports all over the country this weekend to offer free legal help to the travelers and family members of loved ones detained under President Trump’s executive order.” And by Saturday night, many of the most oppressive aspects of the order were on hold, and refugees held at US airports and elsewhere were able to continue their journeys. I was really proud to be a lawyer that weekend. 

In addition to the willingness of lawyers to mobilize to use their skills to help people who had virtually no resources to help themselves, other aspects of modern law practice made this possible. The first is ease of communication. Various networks of lawyers communicated quickly and efficiently on Twitter, e-mail lists, and other social media. Getting the word out got the bodies there. Here are some of them at JFK airport:

Photo: Washington Post, January 29, 2017

The next reason this worked is the availability of online research and writing tools. When I began practicing law, most lawyers had a library full of books in their offices. The books mainly contained printed legal opinions in court cases, the backbone of the common law system. But there were also books called “digests,” which allowed the lawyer to look up a topic (“executive order”) and see what cases had been decided on that topic. The digest would give a sentence or two about the case and a citation which allowed the lawyer to find the right book and page to read the whole opinion. If the lawyer didn’t have the book with the right case, she would go to a local law library to read it. Maybe the library had good hours on Saturday night. Maybe it didn’t. And the process took a while.

Photo: New York Times, January 29, 2017

The others are probably sharing drafts of pleadings. Word processing means that documents, legal and otherwise, can be produced much more quickly and efficiently than in the typewriter era, or the handwritten era that preceded that. So those petitions that were filed in courts around the country could be written and edited very quickly.

Finally, electronic filing was indispensable. The cases could be filed in court from the airport. (There were likely people on the phone with the clerk’s office to make sure someone was watching the online filings.) But the availability of that technology meant that instead of having to wait until Monday morning to descend on the courthouse, the filing process could proceed with relative ease.

Lawyers tend to get a bad rap these days. Maybe that’s because they are perceived as having a lot of power and misusing it. But the weekend of January 29 demonstrated that when the government is out to get you, a lawyer with the right tools to act fast is the person you need.