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Molly Donald

Elizabeth Geary
Myranda Hinkson
Christyana Wood
Ethnographic Project Final Draft

Introduction

In the United States Of America, it is the responsibility of attorneys to apply the law
whenever a citizen is accused of a civil or criminal infraction. However, what the correct
application of the law should be changes for every case, because every case is unique in its
circumstances. This ethnographic report studies how attorneys writing is influenced by ethical
choices, using the lense provided to us by chapter nine of Solving Problems in Technical
Communication. Our studies are based on research that we gathered by working with two
subjects, who were both assistant public defenders for the Office of the Public Defender for
Montgomery County, Maryland. To complete our research, we conducted interviews with each
of our two subjects, took field notes of our subjects workplace, and analyzed artifacts that our
subjects supplied. Throughout the report, we will refer to our subjects as Person A and Person B.
Our research subjects both requested that we redact their names, because while they were willing
to let us research them, they also wanted to keep their work as confidential as possible and
maintain attorney client confidentiality. Other than the names of our subjects and their clients,
which have been all been redacted, all information used to complete this ethnography has been
approved for publication by our subjects.

Research Location and Informants

To collect our data, we went to the Office of the Public Defender in Rockville, Maryland
where of our group members, Elizabeth, is an intern. Through Elizabeth we were able to gain
contact and arrange interviews with two different informants. As public defenders, our
informants defend individuals who are charged with criminal and jailable traffic offenses in
Montgomery County. While currently employed by the Office of the Public Defender, both
Person A and Person B have had considerable previous experiences with the legal and criminal
justice system. Person A graduated from Northwestern University, and then took an opportunity
to complete the Equal Justice Works Fellowship. She worked on the fellowship for two years,
practicing civil rights law. Person B graduated from Georgetown and then spent time working as
a federal public defender in Washington, D.C, before moving to her current position.
We interviewed our informants in their offices in Rockville, located on the third floor of
the District Courthouse. Inside, each attorney had their own private office with a large window
and a door. After asking, we found that attorneys needed their own offices so they could offer a
private space when meeting with a client, in order to provide that client with full confidentiality.
Creating a safe space for client interactions is a fundamental aspect of ethically practicing the
law, because attorney/client confidence is a right guaranteed to American citizens. Despite the
structural division of the offices, we found that this office had a doors open policy when
attorneys werent meeting with clients, different attorneys could go ask each other for advice if
they need to. If they chose to close the door, the attorneys used the curtains that hung in their
window next to each door. A closed curtain was used to signify a client is there and to give the
client extra discretion, while an open curtain meant the attorney was available to talk.
In addition to the attorneys individual offices, the Office of the Public Defender had two
main rooms for the attorneys to meet and workshop ideas. The rooms were made of entirely
glass walls, and appeared to be designed in order to emphasize a sense of openness. We found
that these rooms were mainly used every Wednesday, when the attorneys worked in groups. This
system was used to give a scheduled time for the attorneys to get multiple opinions on
complicated cases. The only other part of the Office of the Public Defender was a common room
with cubicles for the secretaries and mailboxes for the attorneys. The secretaries cubicles were
set up in an open layout. Other than the necessary privacy of each individual assistant defenders
office, the overall design of the office made the space very inviting.

Data Collection and Methods

Throughout the semester, our group completed interviews, collected field notes, and
analyzed artifacts in order to gather our research. To begin, Elizabeth exchanged a number of
emails with four different assistant defense attorneys working at the Office of the Public
Defender, where she interns. Two different interviews were arranged, one with each of the
women who became our subjects. The first interview was conducted and recorded by Elizabeth,
who interviewed Person A. The rest of the group Myranda, Molly, and Christy conducted
and recorded an interview with Person B. Both interviews were conducted within the research
subjects work office and were voice recorded with permission from the research subject.
We predominantly used our interviews to understand what type of mental processes our
subjects thought through while completing their writing. We also used these interviews to
understand what the general practice was for public defenders, and how that standard compared
to the practices our subjects used. When completing our analysis, we listened to recordings of
each interview that we had taken, as well as reviewed our interview notes. Combining our notes
with a recording of the interview helped us look at [our] fish (Solving Problems in Technical
Communication).
Our field notes were taken predominantly by Elizabeth during her time interning, because
she was able to ask the office workers specific questions about the environment in real time.
However, Molly, Myranda, and Christy additionally all took their own field notes when visiting
the Rockville office. We chose to do this in case the time Elizabeth had already spent in the
office caused her to develop unconscious biases.
Lastly, the artifacts that we gathered were sent to us by Person B as soon as we arranged
our interview. The documents were not completed during her time in the Office of the Public
Defender for Montgomery County, but while she worked as a Public Defender in Washington
D.C. These artifacts included three motions and two memorandums. We analyzed these
documents to look for rhetorical patterns, as well as how the audience of the document impacted
its rhetoric. We also wanted to check whether the documents and the interviews conveyed a
similar story. We found that our artifacts and interviews were consistent to each other.
Both research subjects also gave us their contact information so that we could
communicate with them in the event that we have any follow up questions. While reviewing our
artifacts after completing both interviews, we realized that we needed to follow up with Person B
about the purpose of the memorandums since both subjects had only discussed motions.
Elizabeth completed this by asking in person while at her internship because we found this to be
faster than email.

Findings and Observations

Our group's first meeting with our subjects was when Elizabeth met with Person A. The
meeting took place on Tuesday, October 24th, during Elizabeths internship hours. She began by
asking how Public Defence in Montgomery County compared to Person As previous law
experience. Person A started working at The Office of the Public Defender in May of 2017,
having worked before at Equal Justice Works Fellowship. Person A explained that there was less
writing done at this job than at her previous, and that the written documents she now produced
were almost always motions.
Person A continued to discuss with Elizabeth how similar each motion was to the next.
Since judges do not have a large amount of time to spend reading motions, they usually skim and
look for the key words. Because of this, Person A said she spent a lot of time copying and
pasting from previous motions. Rhetorically, each motion is used with the defendants
background in mind and can either invoke sympathy, absurdity, or other emotions to sway a
judge. However, any emotional appeal in a motion must be conveyed through a clear
presentation of the cases facts. Pathos is much less compelling to judges than legal precedent
and case facts. Judges are faced with many decisions every day, and so they take favor to
lawyers that highlight exactly what their legal options are and make clear every reason why the
judge should do what the lawyer is requesting. Person A mentioned that if she were to
consistently use just sympathetic rhetoric with each client, it would fall on deaf ears, because
judges would know that she always tries to elicit sympathy. There were also times when public
defenders needed to use rhetoric to demonstrate to the judge, jury, or prosecutor the absurdity of
the charges that are being brought against the defendant. Low level misdemeanors, such as
urinating in public, can carry jail sentences of over a month. The public defender would need to
demonstrate the irrationality of committing the defendant to the whole jail sentence through their
writing.
After Elizabeths interview, our group decided that in order to find out as much as
possible about legal writing we should go into our interview with Person B using a similar set of
questions, rather than changing our questions based on Person As responses. Person B also
recently transferred to the Montgomery County Office of Public Defenders in August of this year
from her position as a federal public defender in the District of Columbia.
Similarly to our first interview, we began the second interview by asking Person B to tell
us about the differences were between her old job and and where she worked now. Person B told
us that at her previous job, as well as at her current position, almost all of her time writing was
spent on motions for her clients. However, at her previous job, she worked with between one and
four clients a day; now she has nearly fifteen. A consequence of this workload was that Person B
felt she almost always had to make a conscious choice of whose case to give her time to.
Sometimes, she said, but not always, this was easy. In order to explain, Person B gave us an
example using two of her current clients. One was a single mom charged with attempted
shoplifting food after her food stamps were declined. The other client was a veteran with a
drinking problem with multiple previous infractions and a string of charges.
The mothers case was easy because the store was not interested in punishing the woman;
nothing had actually been stolen. Person B also knew that it was extremely unlikely that this
woman would offend again. Person B knew the only person to probably ever read this motion
was the judge presiding over the case. The veterans case needed a lot more time. The veteran
was already a repeat offender, and Person B knew it was likely that he would offend again. That
meant that she had to make every reason behind what she did as clearly traceable as she could,
because she knew that a future lawyer would possibly need to understand her actions.
Often times, however, Person B told us that it was not that simple. Person B said she
regularly chose who to spend more time on based off who was the most active in trying to get
help. That, she said, was the standard way to decide how to prioritize clients. If one person was
answering her calls and another was ignoring them, the unresponsive person was going to get
less of her time on their case.
We continued by asking Person B how her interactions with her clients influenced her
writing. Person B mentioned that it is not uncommon that her clients are mentally handicapped,
and that since she has moved to Montgomery Countys Office of Public Defense almost all of
her clients have been minors. Person B talked about how it was important to do ones best to
ensure that the legal situation is explained to whomever she is working with, regardless of their
intellectual capacity. This involved sometimes explaining things in intense detail, and sometimes
explaining things only in broad, conceptual terms; it depended on the client. Person B also
brought up how attorney/client confidentiality meant that she had to give juveniles the option of
discussing things without their guardians present. Kids often wanted to do that because they were
ashamed of what they had done, and didnt wish to have their parents hear more about it. Despite
the childs preferences and legal rights, parents often had a hard time accepting that they were
not allowed to be involved during some parts of Person Bs council.
After our interviews, we met in person to discuss what parts of our interviews were
similar. We found that much of what our subjects had described was almost identical. In
particular, we observed that during our interviews Person A and Person B both talked about how
law school had not prepared them for how formulaic legal writing was. We were told that in
school, each paragraph was usually expected to be about one to two facts and contain a lot of
details. Yet because with motions the primary and often only audience is the judge, the document
is written to accommodate a judges schedule. That means the writing must be as condensed as
possible. Person B explicitly stated, Each sentence is a fact.
Additionally, there was a lot of overlap when we asked about the ethics of the job. Person
B told us that she often looks at judges schedules when picking the time of a trial so that she is
more likely to have an audience she can connect to. Both Person A and Person B discussed that
they work as hard to help a client whether or not that person is guilty. Person B stated that its
the burden of the State to prove guilt beyond a reasonable doubt. Ensuring the State completes its
burden before a citizen is convicted is, in her mind, more important than the guilt of an
individual citizen. The guarantee that the legal process does not have the capability of ruling
against the innocent person is more important that punishing the guilty, in the mind of a defence
attorney. Person B talked about how is her sole responsibility that the perspective of her client is
presented as clearly as possible.
In addition to our interviews, we examined artifacts for information. We received five
documents of legal writing from the Person B. The first two documents were motions for
summary judgement, the third was a motion for dismissal, and the last two were memorandums.
Neither subject mentioned memorandums in our original interviews, only motions. When we
followed up with them, they said that memorandums were more specific to each individual case,
and required the work of essentially a research project to produce. Due to both of our
interviewees not discussing memorandums during our initial interviews at all, and both of them
discussing their extensive workload at length, we were able to deduce that the pace of the
Montgomery County Public Defenders office made it nearly impossible to put in the time to
complete a memorandum unless absolutely necessary.
The first two documents, summary judgement motions, were remarkably similar. Legal
motions are written procedural devices that request a judge make a specific decision about a
case. Motions all have almost identical language, with the only main difference being what
request the lawyer is making on behalf of their client. The Office of Public Defenders was within
the District Court, and at that level the majority of motions written by the defense are motions to
dismiss and motion for summary judgement.
These documents were essentially just three to five page lists of why the judge should do
what the attorney was requesting. Each reason was underlined and then explained immediately
after being stated. The first reasons were sheer logos, such as Sentencing Guidelines, a heading
from document two (United States vs. YYY). The later reasons were generally more likely to be
emotional appeals, such as CLIENT XXX capacity for rehabilitation, from document one
(United States vs. XXX). However even the seemingly emotional appeals had a firm grounding in
a law, statute, or sociological principle. The language style was almost jarringly brief, with as
few words used as possible to describe everything within a legal significance.
Document three was a motion for dismissal. Motions to dismiss request that the trial be
thrown out of court. This artifact began with a list of reasons to throw out the case. After the list,
there was a more detailed explanation of each reason. There was then a second section, called
Dismissal is an appropriate remedy for the discovery of violations in this case, in all caps
(Barahona and United States vs. ZZZ). What followed was an additional explanation of exactly
why it was the judges best decision to do dismiss the case, and that not throwing the case would
have been a miscarriage of the law that could be overturned later. This falls in line with Person
Bs description of how she often employed the possibility of an overturned sentence. Judges do
not like to be overturned, she said, and so take the consideration very seriously.
The memorandums were also very similar to each other. Both were about eight pages
long, and served as an argument with a the legal goal serving as the thesis. The formatting was
not unlike a typical argumentative paper, with a tactical presentation and explanation of different
factors behind why a certain decision should be made. For example, one memorandum
subheader for an argument was titled, The Relationship between the Youth Rehabilitation Act
and the Voluntary Sentencing Guidelines, from artifact four (United States of America vs.
WWW). Under that subheader were a series of grouped together facts and reasonings, such as
Goals of the Youth Act (United States of America vs. WWW).

Results

Chapter nine of Solving Problems in Technical Communication defines ethics as the


relational, situational, power-laden negotiation of principles derived from various value systems
with the goal of arriving at the best possible course of action. Based on our field notes,
interviews, and artifacts, our group has observed that ethical choices are interwoven into every
aspect of legal writing. Given that ethics and the law both have the goal of determining the best
possible choice of action, this finding did not come as any surprise (Solving Problems in
Technical Communication). However, it was a surprise to us how the nomos of the law has such
a fundamental impact on the ethics of legal writing. Nomos, or nomoi when plural, is the Greek
word meaning standard of conduct (Solving Problems in Technical Communication). The legal
system of the United States is primarily derived from legal precedent. As a result, the nomoi of
law has the largest impact of any ethical value system when a defense attorney is determining
how to ethically proceed with a case. The nomoi of the law has three primary factors: what the
goals of the legal organization are, who the audience is, and who the client is.
The type legal organization that both of our subjects worked for was the district courts
public defenders office. The goal of a public defender is to defend their client to the best of their
ability, regardless of their client's actual guilt. Therefore, it is the ethical responsibility of a
public defender to assert why their client does not deserve punishment, or a conviction. In the
United States, a citizen can only be convicted after the State proves his or her guilt with evidence
beyond a reasonable doubt. The nomoi of a defender, then, is create doubt that the client is
guilty. Or, if a client is certain to be proven guilty, it is the defenders job to minimize the
impacts of that guilt. This means that the ethical choice of a defender is to use whatever
rhetorical strategies they believe are most effective in order to create reasonable deniability for
their client.
The type of rhetoric a public defender is most likely to find effective is determined by
who the audience is. The audience for a legal document is very limited, due to confidentiality
laws. For all written legal documents, the only audience with any impact on the case is the judge.
Judges are well versed in the law and are also very busy. Therefore, they are most impacted by
logos. During our interview with Person B, she described the appropriate way to write for a
judge to be direct, logical, and methodical. She specifically gave the example that the appropriate
way to write is not a paragraph with one fact and supporting details; the nomos of legal writing is
to have ten sentences with ten facts. Although the facts of a case may be designed to evoke an
emotional response, there is no flowery language in order to make sure the format of the
document as uniform as possible. Person A described cutting and pasting from one document to
another while writing memorandums so that judges could literally skim her writing and still
understand every point she made. It is the ethical choice for a public defender to write for judges
in a concise way that presents all the relevant information as clearly and quickly as possible. This
type of user-centered document design is, philosophically, an ethically utilitarian choice as
described by chapter nine of Solving Problems in Technical Communication, because it
emphasizes consequence. Gaining a judges preference by following the rhetorical nomos is the
only way for a defender to reach their ethical responsibility of defending their client.
The final factor of legal nomoi is based on the attorney/client relationship itself. The
busier a public defender is, the less time that they can spend on each individual client. A public
defender has to make the choice of where to focus their energy in writing. The nomos is for
public defense is that clients who are more active receive more time. Chapter nine of Solving
Problems in Technical Communication would describe this nomos as Aristotelian. Aristotelian
philosophy is based on a persons character. A client who is more active in assisting their case
displays the character that they want to be undeserving of punishment. Asserting that their client
is does not deserve punishment is the ethical job of a defender; it could only be ethical that a
defender prioritizes clients who in turn prioritize the defenders ethical obligation. Both Person A
and Person B asserted that they care more about maintaining the attorney client confidentiality
and working to defend their client as best they can over the fact of whether or not their client is
guilty.
Conclusion

Our group chose to focus on the writings of two public defenders with the hope of
discovering how attorneys are impacted by ethical considerations while writing and defending
their clients. After interpreting our field notes, interviews, and artifacts through the lense
provided to us in chapter nine of Solving Problems in Technical Communication, we were able to
conclude that ethical considerations influence every aspect of legal writing. The law is
fundamentally tethered to ethical considerations, because only through the appropriate
application of the law can a legal system can create justice. The correct choice for an attorney to
make is always based on relevant legal precedent, and the nomoi of the situation largely dictates
what the ethical response should be.
Works Cited

Johnson-Eilola, Johndan, and Stuart A. Selber, editors. How Can Technical Communicators

Work in an Ethical and Legal Manner? Solving Problems in Technical Communication,

University of Chicago Press, 2013, pp. 213236.

Superior Court of the District of Columbia - Criminal Justice Clinic. United States vs. XXX. 30

Sept. 2016, pp. 14.

Superior Court of the District of Columbia - Criminal Justice Clinic. United States vs. YYY. 6

May 2016, pp. 16.

Superior Court of the District of Columbia - Domestic Violence Unit. Barahona and United

States vs. ZZZ. 12 Dec. 2014, pp. 115.

Superior Court of the District of Columbia - Felony Branch. United States of America vs. WWW.

17 Mar. 2017, pp. 110.

Superior Court of the District of Columbia - Felony Branch. United States vs. VVV. 19 Nov.

2015, pp. 110.