Lately I’ve wondered whether the civil justice system and lawyers who practice in it have it wrong. Hear me out on this.
When you get in an argument with your spouse or significant other, when it’s all over, do you care who ‘won’ the argument? No, you don’t. Or if you do, you’re in a terrible relationship. Maybe because you are a moron.
What you care about is that you resolved the argument. Period. Victory is when hostilities cease and you want to be around each other again. Am I right?
But then in litigating disputes, it’s all about winning.
It starts with who actually becomes litigators. There are generally two categories of litigators. There are those who just fell into it because they fell into going to law school and fell into a job working for a litigation firm.
Then there are litigators who chose it. Those who planned their life around it long before they passed the bar. People like me.
I knew a wanted to be a trial lawyer by the time I was 15. I started college as a business major for kicks and giggles, but switched my major to history, something I actually liked, so I would make better grades to ensure that I would get in law school. Once I started law school there was never a doubt what I would do. I was going to litigate and ultimately try cases. Why? I didn’t know why. I just knew that’s what I wanted to do.
Now I think I know why. For the competition. I loved to compete as a kid. But when everyone else started growing in the 6th or 7th grade, I didn’t. I was out of organized sports by junior high. I was just too small–still under 5 feet and 90 lbs. when I started high school. I had to sit on a phone book to drive. I was like Owen Meany, minus the charisma.
And I hated it. I wanted to be able to compete.
So you get people like me in litigation. Runts who missed their chance to compete as kids. Ex-jocks who didn’t miss their chance, but still love to compete. It makes for some outstanding competition. I’ve had some great courtroom battles with outstanding lawyers. But we weren’t trying to resolve a dispute. We were trying to win.
You see the attitude in literature about law practice and litigation. “We’re not here to do _________. We’re here to win” you see it written again and again. It’s true. Most of us are there to ‘win.’ But is that the way it should be? Is it best for the clients?
What’s the emotional toll on parties who are embroiled in litigation for years? There is a price to pay, it’s just hard to measure. Likewise, having a conflict resolved has immeasurable benefits on the parties.
Instead of in it to win it, should we be in it to resolve it? Should victory be the resolving of the dispute–the same as in a normal relationship? More and more I am thinking that the answer is yes. Except that’s just not how the system is set up or works.
We litigate in a system tailor-made for competing, not efficiently resolving disputes.
Once we’re into a case, we feel like we have to act like the opponent’s case is b.s. Some lawyers actually always believe the other’s side’s case is b.s. They aren’t necessarily good lawyers, since they never see the freight train coming. But they exist. On both sides of the ‘V’.
Other lawyers will privately admit that the other side might win. Just never to the judge or opposing lawyer. These are good lawyers. They often see the freight train coming and get off the tracks.
The rarest breed of lawyer are the lawyers who will openly admit to the opposing counsel that each side’s case has its pro’s and con’s and it could go either way. Lawyers in this category tend to be great lawyers who are revered by co-counsel and opposite counsel alike. Of course, it’s hard to pull off. If you’ve ever done it, you know that at first, you feel like something bad may happen because you are giving away the Colonel’s secret recipe.
But invariably, nothing bad happens. It improves communications between the lawyers and thus, the opposing sides. It distorts the notion that “we should win” and “you should lose.” Somehow, it becomes more about resolving a dispute. And once you get it there, you’ve got a much better chance of actually resolving the dispute.
But it’s hard to get there. Particularly among the ultra-competitive who become litigators.
So what’s the answer? I’m not sure. ADR may have been an attempt at creating a better system. But ADR went totally off the tracks with forced arbitration from pre-dispute adhesion contracts and arbitration forums that openly tilt for business interests (think AAA and NAF). The result is that people don’t trust ADR.
It’s almost like every case needs a neutral. Not a judge, who is an umpire and doesn’t have time to serve as a neutral. But more than a mediator, who is called in–often at the last minute–to try to help resolve a case. A neutral would be someone with no allegiance to either side who is actively working to bring the parties to a resolution whether the parties ask for it or not.
Yea, I get it. Who would pay the neutral? If this was the easy answer, I’d be telling you here’s the easy solution.
I’d just like to see people talking about these issues and discussing whether there are ways to improve the system. Nothing will change as long as everyone accepts things the way they are.