Reviewed by Mark Kessler, Department of Women’s Studies, Texas Woman’s University. Email: mkessler [at] twu.edu
In this fascinating ethnography combining participant observation and interviews, Robert A. Brooks makes the case that the use of temporary contract lawyers by large law firms constitutes a type of legal labor that will be employed increasingly in the future, a trend producing a “legal underclass” of overqualified and underpaid attorneys, alienated from their professional training and identity. While working on his doctoral dissertation in Sociology on another topic, Brooks used his law degree to gain employment over approximately thirty-six months on seventeen temporary document review projects on behalf of nine different law firms in Washington, D.C. During this time, Brooks realized that the temporary, contract legal workforce might present a significant topic and legal employment trend and, thus, began taking field notes and interviewing twenty fellow “temps” working on these generally large staffed projects. As he explored further, he found very little academic research, with most writing produced by placement agency personnel and the legal press. This writing, by and large, portrayed contract lawyering in an uncritical way, and few existing works included the perspective of temporary lawyers for large firms. Brooks uses his research to support a claim that contract lawyering is part of a trend toward “deprofessionalization,” whereby those in high status occupations such as attorneys lose control over their work, rarely are called upon to use their expert knowledge developed through specialized training, and often begin to question or even lose completely their identity as a professional.
The book is divided into seven chapters. Chapter 1 considers temporary lawyers and document review in the context of critical labor studies, focusing on Harry Braverman’s (1974) degradation of work hypothesis, which emphasizes the ways in which circumstances in place during “late capitalism” produce a type of work characterized by “deskilling,” “task unbundling,” and a general dehumanization for workers who labor in an “iron cage,” to borrow from Weber, within hyper-bureaucratic organizations. Throughout the book, Brooks uses his own experience and quotes from interviews with other contract lawyers to support this critical view of temporary legal work. However, despite the degradation of professional work he witnessed and engaged in, Brooks suggests that legal workers and law firm managers engage in a struggle for control over the work and the workplace and that “temps” resist, often subtly, management tactics.
Chapter 2 outlines the history of the temporary attorney enterprise, an industry initiated by women entrepreneurs for women lawyers experiencing difficulties entering this historically male occupation and balancing professional and personal lives. Gender seems a potentially important underlying theme in this history as popular writings referred derisively to early placement agencies as “Kelly Girls for lawyers,” a reference contributing to gendered stigmatization of this work. However, as Brooks reports, with economic disruptions in the late 1980s, males entered this market in great numbers. Brooks in this chapter tells a fascinating story about the ways in which intense marketing by temporary lawyer placement agencies and demands of large corporate clients helped large law firms overcome their initial reluctance to hire “temps” due to stigma and ethical concerns. He reports that marketing pitches to potential contract lawyers and descriptions in the legal press shaped in part by these pitches suggest that the relatively new occupational role would provide greater flexibility, interesting and challenging work, a chance to learn new skills, and experience that would be useful in gaining more desirable positions. However, most of those interviewed for this study actually took such positions “involuntarily,” without choice due to a need for the income and a lack of other options, and viewed the work and the time commitment as inflexible, and the tasks as regimented, deskilled, tedious, boring, and unhelpful and even harmful in gaining more desirable positions.
The actual work performed by Brooks and his interviewees in document review is described in great depth in Chapter 3. We learn how his colleagues came to locate these work opportunities as well as how they viewed the work itself, work compensated at $25.00 an hour plus time and a half for overtime. The tasks ranged from coding thousands of documents relevant to a case on sheets provided by the law firm, to simple data entry and stapling documents, a task known euphemistically as “unitizing.” The workplace of the contract lawyer is often far removed from the large firms that hire them, with lawyers often crowded into rooms on the firms’ “concourse level,” located in the basement, or in warehouses or at times in condemned buildings. The lawyers, according to Brooks, are sometimes treated poorly as individuals and almost always feel like the law firm’s personnel clearly distinguish them in respect and status from the firm’s more permanent staff.
Chapters 4 and 5 describe methods of administrative control of this work and over these workers as well as a variety of subtle and sometimes humorous forms of contract lawyer resistance. Temporary attorneys describe document review work generally as “obviously boring,” “mindless,” “grunt work,” “a real waste of educated people,” and complained about “lack of autonomy, long hours, insecurity, lack of benefits, poor supervision, and minimal feedback” (pp.80-81). Law firms sought to control the work and the workers by routinizing processes and establishing a very strict and regimented division of labor. Coding sheets used in document review discouraged any creativity and some of the firms employed output requirements for the day or week. Firms also at times threatened to terminate contract lawyers, promised to “roll over” productive workers to new projects, and instituted for control purposes what Brooks refers to as “babysitting,” the placement of law firm personnel in the document review workplace to monitor work production. “Temps” resisted these various tactics in numerous ways, including work slowdowns, a behavior that Brooks refers to as “box shopping,” the choosing of the lightest or most interesting box of documents to review, rather than the next in order, as well as public displays of humor about the work, the firm, and/or the firm’s monitors.
Chapter 6 examines the impact of the deskilled and unbundled work on the professional identity of the contract attorney. Using the interviews skillfully, Brooks suggests that the “temps” suffer from status incongruity, having received specialized training in law school and socialization into a professional role, while working in positions perceived commonly as “a glorified data entry person,” the engaging title of the chapter. He explains that the lawyers develop several strategies to manage the identity problems associated with document review work, including rationalizing their situation in this position as “only temporary,” suggesting that they were actually “self-employed,” blaming the economy, and for some, arguing against the stigma by either stating that all “temps” were doing excellent work, becoming a “super temp,” or by transferring stigma to their fellow contract attorneys in order to elevate their own status. A concluding chapter places the findings in the general context of current issues and trends in the legal profession which, Brooks argues, point to a further commodification of legal work along with increased degradation and deprofessionalization.
The clear strength of this volume is its richly detailed, thick descriptions of the author’s experiences, supplemented by interviews with his fellow contract lawyers. We learn much from this study. We learn what document review work is and that the lawyers who do it rarely have a clear sense of the meaning of their work for the larger case from which it emerges; that many work very long hours, as much as 100 per week, sometimes seven days a week, on projects of unknown duration that frequently come to an abrupt completion when the firm announces it has no more work for them. Brooks makes it clear, however, that document review, the focus of this volume, is only one type of work engaged in by contract attorneys. More information and a similar detailed examination of other work tasks performed by contract lawyers are needed in order to evaluate Brooks’ larger claims and predictions for the future regarding professional work tasks for attorneys and to develop a more complete picture of what appears to be a relatively recent development in the continuing stratification of roles and positions in the legal profession (Heinz and Laumann, 1982; Heinz, et al., 2005). In this regard it would be useful to know more about the demographic distribution of lawyers into this emerging stratum of the profession, a topic that Brooks raises but cannot address in depth with his research due to the limited nature of his ethnography and sample of attorneys. As the profession becomes more diverse demographically, are attorneys with identities and backgrounds historically excluded from the profession (Auerbach, 1976), such as women and racial and ethnic minorities, more likely to practice law in occupational locations that are “degraded?” Will the organized profession see this work, the working conditions associated with it, and the continuing and perhaps deepening stratification worthy of its attention and, if so, how will it respond? The sample of twenty lawyers interviewed for the study were chosen, Brooks suggests in the volume’s preface, to reflect diversity in gender, race, and ethnicity and brief biographies of those interviewed are included in an appendix. Ten are identified as women, five of whom are women of color. Two of the male interviewees identify as racial or ethnic minorities and two identify as gay. What role, if any, do the lawyers’ intersecting identities play in their treatment as “temps” by employers and in the ways in which they interpret their experiences in the workplace, their previous training in the law, as well as their professional identities as attorneys? These questions are not addressed, but are inspired by this excellent and engaging ethnography of some of the work done by contract lawyers.
Brooks focuses appropriately on the data he collected to address concerns regarding the plight of contract lawyers. The research and analyses, though, raise larger questions about professional labor, several of which are mentioned in this volume, that Brooks explores less intensely. Brooks’ use of critical labor studies, such as the work of Braverman (1974), is interesting and helpful in placing the practices he describes for lawyers in a category that previously applied most closely to industrial work. But beyond its use in categorizing this phenomenon, Brooks does not develop a deeper critique of the analyses of work in critical labor studies or of the trend toward “deprofessionalization” from a vantage point nearly forty years after Braverman wrote and with a greater recognition of capitalism’s global reach. Further, the conclusions regarding what may be done in response to these trends are disappointing. Brooks quotes one interviewee who when asked how document review could be improved responded with two words: “A union!” (p.184). Brooks responds to this notion by discussing the obstacles and barriers to unionization and goes on to suggest that reasonable arguments can be made to both embrace and resist the trend toward using temporary attorneys.
Brooks briefly mentions that work in other professions, such as medicine and university teaching, have been “degraded” as well. The latter example is all too familiar to those of us in the academy who have witnessed the ascendance of a corporate model of education producing increasing reliance on part-time faculty who are paid low wages, typically by the course and without benefits, a decreasing reliance on full-time tenure track faculty, and the rise of massive online courses that threaten to displace many full-time faculty in the future. Brooks may be correct that there are great barriers to collective action among vulnerable and highly scattered legal professionals. But if the professional identities, job security, and ability to earn a living wage of so many are under assault – lawyers, doctors, college faculty, nurses, to name a few – then it seems possible, even if fraught with difficulties, for those doing the labor across occupational positions to see that they share interests as workers confronting employers exploiting their labor and degrading their work for their own benefit. Those who labor full time in the academy have a role to play as well. As Su and Yamamoto (2002) suggest, scholars may help to expose, publicize, and fight injustice by working in “critical coalition” with activists, lawyers, and those suffering at the hands of others from violations of basic human dignity. Studies such as that reported in this volume, anchored in the life experiences of those whose work lives and career aspirations it depicts so well, may encourage further research on other segments of the labor market that may be usefully employed in struggles for social justice to challenge the practices of global capital and those representing their interests, ultimately altering the calculation that labor is always more beneficial when it is “cheaper by the hour.”
Auerbach, Jerold S. 1976. Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press.
Braverman, Harry. 1974. Labor and Monopoly Capital. New York: Monthly Review Press.
Heinz, John P. and Edward O. Laumann. 1982. Chicago Lawyers: The Social Structure Of The Bar. New York: Russell Sage Foundation and American Bar Foundation.
Heinz, John P., Robert L. Nelson, Rebecca L. Sandefur, and Edward O. Laumann. 2005. Urban Lawyers: The New Social Structure of The Bar. Chicago: University of Chicago Press.
Su, Julie A. and Eric K. Yamamoto. 2002. “Critical Coalitions: Theory and Praxis.” in Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris. Editors. Crossroads, Directions, and a New Critical Race Theory. Philadelphia, PA: Temple University Press.
Copyright 2013 by the Author, Mark Kessler.