A trail-blazing academic urges her students to get active in law reform
As a young lawyer, Molly O’Brien did battle with the best in American courts where she defended clients including a man accused of murdering his baby and another up on rape charges.
Now an associate professor in the ANU College of Law, she is campaigning for a less adversarial approach to law, even if that means action to change practice style.
Molly was a formidable adversary in courtrooms when she was Assistant Public Defender in Pennsylvania in the early 1990s. But she has since been working at a different level, to solve problems at the heart of Western law – racial discrimination and the rush to court in cases in which there are alternatives to litigation. Now as Director of Teaching and Learning at the College, she is encouraging her students to take the lead in law reform.
“Sometimes you have to win in court in order to help the client,” she says. “But winning is not the only goal. The goal is to help the client, and sometimes that might mean changing the law because it is unjust and you have a client whose life is tied up in it.”
Her deep sense of justice was aroused when she witnessed racism against African-Americans as a child in Tennessee in the 1960s and 1970s. By the time she was in junior high, southern American schools were starting to be desegregated but young black kids were being beaten up by older white kids. She intervened in the fights and reported her classmates to teachers. “I sometimes got into trouble for that,” she says.
Molly graduated in arts in 1982 from Brown University, Rhode Island, where she had studied subjects including ethnomusicology. But she says she “kept becoming interested again and again in legal studies”. She spent her spare time teaching English as a second language to immigrant workers and attended immigration hearings with her students.
She decided to pursue a career in law after working as a translator for a leading Massachusetts lawyer with a big Portuguese clientele.
She undertook a law degree at Northeastern University in Boston and before graduating she was appointed judicial clerk in the Federal District Court in Atlanta. Clerkships are coveted and it is rare for a student to get one. In the district court she worked for a judge who heard cases involving Cuban boatpeople. “I handled lots of Cuban complaints – everything from divorces to immigration and bank robberies,” she says.
With the birth of her first child, Molly postponed practising law, instead taking up another judicial clerkship – at the Georgia Supreme Court, where she worked for four years on appeals cases.
The judges for whom she worked as a clerk would become her main mentors. “Most of my mentors have been men,” she says. “As it turned out, they ended up being very close to me and very good mentors.”
Later, she practised in Pennsylvania, first as a civil litigator and later as an Assistant Public Defender in Lancaster County Court.
Some of her clients had committed heinous crimes. Others broke the law just to survive. She recounts the story of a young woman facing a jail term for multiple traffic violations. The woman had had her driver’s licence suspended but had to drive from her father’s farm to the supermarket regularly to buy nappies for her baby.
“I was defending the poorest and usually the blackest and the people who didn’t speak English,” Molly says. “For those people just getting by involved behaviour that broke the law just to get through a day.”
She tired of “representing one client after another” and embarked on an academic career, undertaking a program at Temple University, Philadelphia, designed to prepare lawyers for research and teaching roles in universities. “That would give me contact with the criminal bar and still give me a chance to think about the cases and issues,” she says. She served in the law faculties of Emory University, Atlanta, and the University of Akron, in Ohio.
When her first marriage broke down at a time when her children were getting older, a romance from her Brown University days – with the American-Australian physicist Charley Lineweaver – was rekindled. She moved to Australia to join him, taking up a position at the University of Wollongong. Now the pair, who were married in 2009, both Swork at the ANU.
However, Molly received a serious setback in early 2012 when a cycling accident left her in a coma for months. She then had a long period of amnesia. At the time of writing she was well on the road to recovery and had returned to work.
She has served on several professional bodies, including the American Bar Association and the Association of American Law Schools, in which she held executive positions. She is a fellow of the International Society of Barristers and was a member of the Ohio Supreme Court Task Force on Jury Service between 2002 and 2004. She has been on the Fulbright Selection Committee since 2009.
Molly has a formidable publication record. She co-authored a textbook, Trial Advocacy Basics and has published several book chapters and papers on topics ranging from trial practice and procedure to racial discrimination and education.
She has taught everything from criminal justice to evidence. At the ANU in 2009 she received the Dean’s Cup and the ANU College of Law citation for outstanding contribution to student learning. She received the Australian Learning and Teaching Council citation for outstanding contribution to student learning in 2010.
As a teacher and mentor, she has been described as “unafraid and generous”. She has produced innovative teaching materials, and one of her multimedia instruction packages, which includes mock trials, has been adopted by other academics.
Throughout her career, Molly has juggled work and family life by sacrificing sleep, often working late into the night to prepare her cases or lectures. She rarely took time out for herself, devoting her vacations to work projects or to meeting family responsibilities. An accomplished folk musician, she only occasionally found the time to play guitar and South American flute, sometimes performing in bands.
“I have been running on high gear for twenty or thirty years,” she says. “The way I managed it – kept all the balls in the air – was to keep throwing them faster. I’d work until 2am and get up at 6am and start all over again.”
She has seen big changes since she started her career – at a time when most of the lawyers and almost all of the judges were men. “Women have been making a move in the profession,” she says. “They have a greater presence and greater power in the courtrooms. There are still far more men than women on the bench but in Australia there are quite a few women on the bench. People feel hopeful about that. Some women have been on the bench for a quite a number of years, and I think they’ve made a real difference.”
She says there is a stark contrast between Australian and US law students; in the US students must have bachelor’s degrees before undertaking law degrees. They are older, and have a passion for the profession.
“In Australia, they don’t necessarily want to be lawyers,” she says, adding that many enrol in law simply because they have the requisite high university admission index. “That’s a negative for law,” she says. Many are accomplished academically but helping people is not their main motivation for entering the profession, she says.
Studies show that many graduates do not work in law in the first year after graduating. Many work in fields including business, science or the arts, she says. “We spend an enormous amount of time educating students who are then going to be opera stars.”
But of the graduates who do enter the profession, many work in criminal law, often in legal aid. “I always feel that’s a victory for me,” she says. “The good reason to go to law school is because you want to change the world. You want to see justice happen, you care about the way society works and you want to see it work better.
“At their best, lawyers are problem solvers. They’re engaged with people. They’re not engaged with the law or the courts, although they have to deal with the law and deal with the courts. They’re really engaged with their clients. That is something that seems to get overwhelmed in the Australian law degree. They [the students] seem to hear more about winning and citing the right precedent than they hear about solving a problem for a real client.”
She wants her students eventually to take on the long and difficult task of changing the law, when necessary, through means including the Law Reform Commission and lobbying parliamentarians.
“It’s a change from being adversarial to being cooperative and working for change,” she says.