I recently had lunch with a friend who I haven’t seen in many years. She shared that she’s been in litigation for seven years with her ex-boyfriend, who was also her business partner. She won in trial court, but the case has been appealed all the way up to the state supreme court, and the ex is now threatening to appeal it to SCOTUS.
I asked her if she wanted to litigate the case and she said sure, in the beginning, because she was angry at her ex. Now, she’s not even sure what they’re fighting about. She’s too vested in the case to walk away and clearly, both sides have been digging in their heels and are now neck deep in the quicksand called our “justice system.” She hired a well-respected law firm, and needless to say, the only parties that are happy with this situation are the lawyers.
She shared her frustrations with the legal system, her attorneys, and mainly herself for thinking that somehow, all the anger and frustrations of this business (and romantic relationship) failing could be fixed by the ruling of the judge.
I have another friend who is a lawyer whose mother died as a result of malpractice. After two years of litigation, she finally got a settlement. I asked how she felt, and she said she was really unhappy. The only thing she ever wanted from the case was to be able to sit down with the doctor and talk to him. She wanted to understand the circumstances that led to the death of her mother — from the doctor’s mouth. She felt this dialogue with the “wrongdoer” would give her closure.
Most lawyers probably have had these types of experiences where despite getting a winning result for their clients, the clients are still unhappy. The clients are generally unhappy because a) they never wanted to be in this situation, b) they did not understand how much time, effort, and money it would take to “win,” and c) the justice system is often anything but “just,” and the victory imagined is often not very satisfying.
Which brings me to the question — what is the role of a lawyer? A simple answer is that our role is to zealously advocate for our client’s interest. But what does that really mean? In my first example, was my friend’s interest being best served by fighting to the bitter end? For what actually turns out to be unresolved anger stemming from the failed relationship? In my second example, did the malpractice attorney really advocate for her client when the client made it very clear what she deeply desired was an opportunity to speak with the doctor — and not money?
Before we had law and order, before we lived in a civilized society, people resolved their disputes through physical fights (usually to the death). Then we as a society decided that maybe killing each other to resolve conflict wasn’t such a great idea. So, now we have law and lawyers. But there is still a remnant of the origins in that when a client hires a lawyer, oftentimes, they’re hiring a skilled mercenary.
I was reading a book titled The Compassionate Lawyer, by Kimberly J. Stamatelos (you can listen to my interview with Kim here.) She practices family law, mediation, and collaborative divorce. In the very first page of the book is this quote:
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.
~Abraham Lincoln
In law school, we’re trained to think that all legal disputes must be resolved by the court system. We are rarely trained in Alternative Dispute Resolution (ADR), mediation, or to simply help our clients to move past the anger and see the situation with more clarity.
It was interesting talking to Kim because even just a decade ago, mediation was dismissed as nonsense. What good would it do for the parties to talk to each other? That’s just crazy. Of course, now, mediation is widely available and is often mandatory. At least some portion of lawyers are moving towards becoming as Lincoln suggests, “peacemakers.”
There are many movements towards this goal, including ADR, Conscious Capitalism, Problem-Solving Justice, Conscious Contracts, Conscious Uncoupling, Restorative Justice, and of course, mediation.
I recently sat down and interviewed Judge Bruce Peterson from Minnesota, and I was surprised to hear about all the things the courts are doing to actually help the offenders. He was also in the process of putting a curriculum together for a course on Lawyers As Peacemakers for a local law school.
In a recent article in the New Yorker titled You Really Don’t Have To Work So Much, the author addresses the friction between the social function of law — dispute resolution — and the almighty billable hour.
Consider the litigation system, in which the hours worked by lawyers at large law firms are a common complaint. If dispute resolution is the social function of the law, what we have is far from the most efficient way to reach fair or reasonable resolutions. Instead, modern litigation can be understood as a massive, socially unnecessary arms race, wherein lawyers subject each other to torturous amounts of labor just because they can. In older times, the limits of technology and a kind of professionalism created a natural limit to such arms races, but today neither side can stand down, lest it put itself at a competitive disadvantage.
Which brings me back to the broad question of the role of lawyers in general, but perhaps more applicably, your role as a lawyer. You get to define for yourself how you want to practice and what kind of lawyer you want to be.
In my recent interview with Jim Dwyer, a personal injury lawyer in Portland, Oregon, who also blogs at Tipping The Scales, he shared that his first priority when a client walks into his office is to help the client restore his or her health. Think about that. Many PI lawyers want their clients to remain injured, or at least continue to suffer as a result of the injury because that may lead to greater financial compensation.
Practicing law is an incredible privilege. We have the power to make an impact — both small and large. Yet, rarely do we as lawyers contemplate the type of impact we want to make in the world, or what is indeed in the best interest of our clients.
Finally, I’ll leave you with this eloquent quote by Chief Justice Warren Burger from 1984.
The entire legal profession – lawyers, judges, law teachers – has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts.
For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.
This article first appeared on Above the Law.