Rascuache Lawyer: Toward a Theory of Ordinary Litigation

Rascuache Lawyer Rascuache Lawyer Toward a Theory of Ordinary Litigation Alfredo Mirandé The University of Arizona Press Tucson The University of Arizona Press © 2011 The Arizona Board of Regents All rights reserved www.uapress.arizona.edu Library of Congress Cataloging-in-Publication Data Mirandé, Alfredo. Rascuache lawyer : toward a theory of ordinary litigation / Alfredo Mirandé. p. cm. Includes bibliographical references and index. ISBN 978-0-8165-2983-4 (pbk. : alk. paper) 1. Mirandé, Alfredo. 2. Cause lawyers—California—Biography. 3. Sociology teachers—California—Biography. 4. Hispanic Americans— Legal status, laws, etc.—California. 5. Legal assistance to the poor— California. 6. Critical legal studies—United States. 7. Race discrimination— Law and legislation—United States. I. Title. KF373.M534A3 2011 340.092–dc22 [B] 2011007961 Manufactured in the United States of America on acid-free, archival-quality paper containing a minimum of 30% post-consumer waste and processed chlorine free. 16 15 14 13 12 11 6 5 4 3 2 1 Contents Acknowledgments vii Introduction: The Return of the Brown Buffalo and the Rise of the Rascuache Lawyer 1 Crimes against the Person 1. Attempted Murder: “My Brother’s Keeper” 21 2. Child Abuse: María y José 54 3. Domestic Violence: Xavier, the Painter 73 Denial of Due Process 4. Concealed Weapon: Carlito’s Güey (Way) 91 5. Trespassing: Benny, the Homeless Man 104 6. Speedy Trial: Rodrigo Torres 125 Morals Charges 7. Indecent Exposure: The Story of Bud Black 143 8. DUI: A Bag Full of Tricks 165 Wrongful Termination 9. Age Discrimination: Big John 207 10. Toward a Theory of Rascuache Lawyering 228 Notes 243 Index 255 Acknowledgments Many people have contributed directly or indirectly to the completion of this book. I would like to fi rst thank the students in the Lawyering for Social Change (LSC) curriculum at Stanford Law School and Gerald P. López, who taught me much about rebellious lawyering and has served as a colleague, mentor, and friend. I took a directed-readings course on critical race theory (CRT) from Professor Thomas C. Grey during my second year of law school, and he guided me through the readings, introducing me to the writings of Richard Delgado and The Rodrigo Chronicles. Professor Kim Taylor taught a valuable criminal law trial practice class, while Gerald López and Shauna Marshall provided input and direction in the community law trial practice class. Bill Hing and Eric Cohen served as important teachers and mentors in the immigration law clinic where I represented my very fi rst client in a political asylum case. David López, a former student of mine and now a successful attorney, not only was a friend and confi dant but assumed the role of informal mentor and taught me a great deal about lawyering and law practice. Walter Martínez and Enrique López, also former students, supported me in various tasks associated with the practice. The Academic Sen- ate of the University of California, Riverside, gave me seed money that supported my writing and research. Janice Searle and other staff at the Riverside County Law Library were extremely helpful and assisted me in conducting legal research that supported my practice. I would like to thank the three anonymous reviewers who commented and made valuable recommendations for revising the book. My daughter, Lucía, read and made helpful suggestions on earlier versions of the manuscript for this book and encouraged me to complete it. Ingrid Carolina Parra served as my research assistant and provided valuable support by reading and commenting on the entire manuscript and assisting in the organization and formatting of the book. I would viii acknowledgments also like to thank all of my clients who trusted me, let me into their lives, and provided the stories that made this book possible. The names, locations, backgrounds, and all identifying information for the people in this book have been changed to protect their privacy and maintain their anonymity. A fi nal thanks goes out to Fermina, my fictional friend, who always challenged me, pointed out my mistakes, and inspired me to become a better lawyer and person. Rascuache Lawyer Introduction The Return of the Brown Buffalo and the Rise of the Rascuache Lawyer Since its inception in the 1980s, critical race theory (CRT) has challenged the basic assumptions underlying traditional legal scholarship and law practice.1 Francisco Váldes, Jerome McCristal Culp, and Angela P. Harris note that CRT challenges three popular beliefs about racial injustice in the United States.2 The fi rst and most resistant belief challenged by CRT is that “race blindness” will eliminate racism.3 The second belief challenged is that race is a matter of individual prejudice, rather than of systemic racism.4 Finally, CRT challenges the popular belief that one can fi ght racism while ignoring sexism, homophobia, class exploitation, and other forms of oppression.5 An additional distinguishing characteristic of CRT is that it has sought to incorporate the voices and narratives of previously excluded groups into law. Following in the tradition of CRT, since it emerged more than a decade ago, Latino critical race theory (LatCrit) has similarly challenged liberal law theory and practice by incorporating the experiences and voices of Latinos into law and law scholarship and articulating an antisubordination theory and praxis.6 Derrick Bell and Richard Delgado have been two of the pioneers in the use of narrative and storytelling techniques to advance law scholarship. Bell blazed the trail in his classic And We Are Not Saved: The Elusive Quest for Racial Justice by fi rst introducing a fictional fi gure, Geneva Crenshaw, the heroine of his book.7 A brilliant civil rights litigator, Geneva was participating in a voter-registration drive in 1964 when she was severely injured after her car was run off the road in an attempted murder. Emerging from a coma after some twenty years, Geneva presents Bell’s alter ego, a law professor, with the fi ctional text The Civil Rights Chronicles, a fresh and innovative look at race and law in contemporary society.8 Bell pioneered the use of fi ctional stories, 2 introduction fables, parables, and tales in law. Kimberlé Crenshaw, a well-known critical race theorist, notes, “Allegory offers a method of discourse that allows us to critique legal norms in an ironically contextualized way. Through the allegory, we can discuss legal doctrine in a way that does not replicate the abstractions of legal discourse. It provides therefore a more rich, engaging, and suggestive way of reaching the truth.”9 More than a decade after the publication of Bell’s book, Richard Delgado introduced Geneva’s half-brother, Rodrigo Crenshaw, a brilliant young law-student-turned-law-professor. Born in the United States and raised in Italy, Rodrigo attempts to return to his native country to help it deal with its current racial crisis, engaging a law professor, Delgado’s alter ego, in a series of chronicles focusing on topics such as law, racism, civil rights, and affi rmative action.10 Rodrigo’s father was apparently in the military and stationed in Italy, allowing Rodrigo to have graduated from the University of Bologna, one of the oldest law schools in the world. In his fi rst chronicle, Rodrigo seeks out the professor for advice on how to pursue a career in law teaching. Despite the signifi cance and impact of these and subsequent works, in the end critical race theory (CRT) and LatCrit have done little to advance our understanding of law practice. This book seeks to continue the tradition and style introduced by Bell, Delgado, Patricia Williams, and other critical race theorists by using narrative and storytelling as a technique to address current issues not only in CRT and LatCrit but also in law practice. While teaching a sociology graduate seminar on gender several years ago, I “created” and introduced a fi ctional mujer and my alter ego, Fermina Gabriel, in letters that I wrote and shared with my students. Like Geneva and Rodrigo Crenshaw, Fermina Gabriel is imaginary, but in this book—like Bell and Delgado—I seek to use narrative and storytelling to address theoretical, practical, and ethical questions and issues that arise within law and law practice. Although substantially infl uenced by Bell and Delgado, my cartas, or fi ctional letters to Fermina, differ from those authors’ works in several important respects. First, while Fermina is fi ctional, and the names I use have been altered or disguised to protect the privacy of the parties, the events described in the ensuing pages are not fi ctional. Second, Fermina has not been in a coma, nor was she raised abroad—she is a Chicana and fi rmly anchored in her community, culture, and language. Third, rather introduction 3 than using allegory, fables, or tales, I attempt to incorporate biography and personal narratives into my letters. Ironically, while we learn much about Geneva and Rodrigo and the fi ctional law-professor alter egos created by Bell and Delgado respectively, from these brilliant essays one learns precious little about the authors’ personal biographies—other than the fact that Bell was a civil-rights-litigator-turned-law-professor and constitutional law scholar, and Delgado was an attorney-turned- law-professor. In short, my letters to Fermina are not fi ctional, although Fermina herself is. Rather, my cartas are “fi eld reports” or journals that I have incorporated into my pedagogy in teaching law and law-related classes.11 Here, I use the letters in an effort to elucidate law practice. Fermina Gabriel: My Alter Ego Like others who have migrated to the United States in search of work, most mexicanos can recall writing or receiving letters from distant rela- tives who were left behind.

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