Category Archives: A.D.R.

Decline of American Legal Practice

 

Wednesday, May 26, 2010 Talk: Economic Roundtable[1]


I’m going to summarize for you the most important things  I have learned about successful conflict resolution during more than 40 years of experience in both public and private legal practice, and contrast it with what has become typical American legal practice.

Winston Churchill called his history of World War I The World Crisis.  What a prophet he was.  World War I was indeed a “crisis;” a cross road in which the great powers of the world took a decisive wrong turn leading to a new European order.  A reading of Churchill’s account of the senseless slaughters of World War I combat is likely to strike contemporary readers as utterly incredible.  How could the leaders of what were supposedy the most civilized nations in the world  continue to consent, over a four year period, to sending hundreds of thousands of young men to their certain death or mutilation in battle after battle after battle?  It was war by attrition, as deadly for the supposed victors as for the vanquished.

The greatest troubles of world history as measured by death and destruction found their culmination in the 20th century with the deaths, mutilations, and displacements of hundreds of millions of people throughout the planet.  The saddest stories of world history are, in other words, the stories of attempted conflict resolution by war. As Albert Einstein observed,

“The unleashed power of the atom has changed everything but our modes of thinking and we thus drift toward unparalleled catastrophe.”[1]

President Obama’s recent declaration of a new strategic policy emphasizing promotion of  “the renewed engagement of our diplomats” (NYT, 5/23/10) is likewiae a nod in the direction of Einstein’s insight.  In terms of civil conflict, the typical practice of law today where even moderately high stakes are concerned, have become like the battles of WWI: senseless battles of attrition with no prisoners taken and common sense be damned.  We like- wise need instead a greater commitment in civil conflict to the renewed engagement of lawyers as peacemakers and  problem-solvers, as counselors at least as much as advocates.

I therefore come here this morning to speak to you of conflict resolution by means other than by war; and specifically, in more than just a metaphorical sense, by means other than the civil wars fought in adversarial litigation by lawyers.  It has often been observed that Americans are the most litigious people on the planet.   We are not only inclined to say “There ought to be a law…” but also that “There ought to be a lawsuit to solve my problem.”  In contrast to this American disposition, I am an advocate of  conflict resolution in civil matters by peacemaking, problem-solving methods, through negotiation rather than through a warmaking, adversarial model of legal practice.  Some trial lawyers might say that in choosing this path, I don’t have the “killer instinct.”  I confess to that.  That is because I very much prefer healing to killing and life to death.

What are “the most successful conflict resolutions?” The most successful conflict resolutions:

(1) Satisfy all parties to the conflict to the maximum extent possible.

(2)  Involve the least possible expense in time, money, life disruption, and emotional distress.

(3)  Are real and long–lasting.  And

(4) Are least likely to create potential causes of new conflicts.

Conflict resolution, like medical practice, is an art, not a science. I consider one of my prime credentials for expertise in conflict resolution the fact that I have been married to the same spouse for 47 years –three times.  (Our divorce was a failure so we had to remarry each other.)  And my wife gave me one of the most valuable insights I have ever had into conflict resolution; an insight more profound than most lawyers in the present typical mode of legal practice are inclined to achieve: the first thing you must do if you want to resolve a conflict is to listen. [Joy story]

 

Learning how to listen and hear what is being said by a party with whom one is in conflict is the first and most important key to successful resolution of the conflict.  I want to say more about that in this talk, but first let me summarize briefly  five other key principles to successful conflict resolution that I have gleaned from more than 40 years of legal practice, especially during the last 20 years in private practice and conflict resolution:

1.     COMMON GROUND: Conflict presents problems to be resolved by finding common ground for a mutually acceptable solution.

2.     KEEPING A HUMAN VIEW and avoiding role-playing.

3.     DETERMINE AND KEEP IN MIND WHAT REALLY MATTERS to the parties involved. Minimize essentially irrelevant detours. (Lawyers’ tendency to avoid emotional issues; divorce case settlement.)

4.     BE OPEN TO GETTING HELP. The problem giving rise to the conflict may be different than it first appears, and may require the expertise not of just a lawyer, but, for example,  of an accountant, or an electrician, or a plumber, or a psychologist.

5.     SEARCH FOR POETIC JUSTICE. The greatest negotiating skills are not merely technical; they proceed from the human skills of observation, perception, understanding, empathy, reason, and imagination and focus on the very particular circumstances of each matter involved.

Let me state an important  footnote to all this: the problem of dealing with fools and knaves. Fools require empathy; knaves requre sticks and carrots.

OBSTACLES to Listening and Hearing:

Barriers to Hearing What is Beng Said

1.             Partial deafness, or other hearing problems.*

2. Competing sounds, or conversation, or physical barriers to hearing another person clearly.

3. Tone, pitch, or volume of voice.

4. Different, unusual, or ambiguous use of language.

Barriers to Hearing & Listening

5. Distraction, interruption, or preoccupation.

6. Fatigue, boredom, disinterest, or other inability to concentrate. Barriers to Listening With Your Heart

7. Judgment, Prejudgment, and Misjudgment

8. Bias and Personal Prejudice

9. Differences of Perspective

10. Alienation

* Note: http://well.blogs.nytimes.com/2010/04/26/little-known-disorder-can-take-a-toll-on-learning/?th&emc=th (“Little known Disorder Can Take a Toll on Learning,” NYT, April 26, 2010)

In contrast to the peacemaking, problem-solving approach I have just summarized to conflict resolution, there is the approach emphasized in law school and typified by most American legal practice:  Seeing conflict as a matter to be resolved by reference primarily to legal rules with the prospect of litigation to “resolve” the conflict.  This is, in effect, what most of the typical law school curriculum teaches, how lawyers are mainly trained to think, and how most lawyers practice their profession. Most legal studies center on the failures of conflict resolution that have led to litigation. [2] Analogy to World War I trench warfare; DISCOVERY ABUSE; Victory by attrition.  Result: increased costs through defensive medicine  (Justin leg story).  Estimated between 8% and 24% increase in American legal costs.  “Lawyer,” “Attorney,”  “Counselor.”  Elihu Root.  90s books; settlement statistics (Loyola LRev)

CONCLUSION: Need for reform of legal education and practice to emphasize problem-solving and peacemakng instead of warmaking.  Negotiation a required bar course.  (Much more important than recovery caps.)  Lincoln:

“Discourage litigation. Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser ––in fees, expense, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man.”

 


[1] Conflict Resolution and What’s Right and Wrong With Lawyers: The Litigation Problem A talk on the core principles of conflict resolution and how typical contemporary legal education and practice, by unnecessarily turning problems into lawsuits, burdens the economy and promotes civil discord instead of community peacemaking.

[1] This stark truth was, no doubt, what John Paul II had in mind when he wrote that “War should belong to the tragic past, to history;  it should find no place on humanity’s agenda for the future.”

[2] American Principles & The Evolving Ethos of Aerican Legal Practce, 28 Loyola Unversity Chicago Law Jurnal 237, Winter 1996.

Reflections on the Purpose of Law

San Francisco Attorney magazine, Winter 2003

 

I have been practicing law for thirty-five years, and I remain proud to be a lawyer in the United States.

As I have written elsewhere[1], the American legal profession and its most accomplished members have been among the most civilizing and progressive forces in history. American lawyers, going back at least to Thomas Jefferson, have helped to provide others with a better life through their vigorous defense of individual human rights, their political acumen—more than two-thirds of our presidents during the first 150 years of our nation’s history were lawyers—and by the contributions lawyers have made to the world’s economic and social development.

It is great to be a member of a profession whose very existence is designed to elevate human conflict from the brutish to the civilized, as Aeschylus’s mythic trilogy, The Oresteja, depicts in its transformation of blood vendetta to the reasoned discipline and restraint of trial by jury. The exercise of reason in human affairs is the most reliable means for bringing of stability and justice out of the chaos of human competition and conflict. “The life of the law,” as John Locke wrote, “is reason.”

Understanding the essential purpose of the legal profession is gratifying. Even greater gratification may come from helping clients resolve their problems, not only through the occasional trial of a case but, more often, through humanistic counseling and skilled negotiation. I spent the first two-thirds of my legal career in the federal government, with the U.S. Department of Justice and the Federal Trade Commission. There are, of course, satisfactions a lawyer enjoys from the practice of public law. These are derived mainly from being a position to help implement beneficial public policy. The satisfactions of advancing a good government policy, however, are rather abstract; one rarely sees how government work actually affects individuals. They are, therefore, generally less than the satisfactions private practitioners can enjoy from seeing their work make concrete, positive differences in the lives of the men, women, and—at least in effect— children that come to them for help, as well as from contributions they make to the well-being of their business clients’ enterprises. These greater satisfactions are compounded for me as a solo practitioner and independent businessman with the luxury of choosing my clients and regulating my own calendar.

When you run your own business, there are also things that come with the territory that are not-so-great. There is constant worry about the bottom line, from which you are, of course, exempt if you are a salaried employee. There can be nerve-wracking uncertainties about the ultimate outcome of a case in which you have invested much thought and labor, because of difficult facts or conflicting rules of law, or the discretion vested in judges. There is the occasional deadbeat client, sometimes one for whom you have worked above and beyond the call of duty. And, of course, the lost case or the case that, for one reason or another, prudence requires you to settle on terms that seem to you unfair.

These are perils of practicing law, but they are not nearly as disappointing or frustrating as the commonly disappointing character of prevalent American legal practice itself, and the concomitant erosion of civility in relationships between opposing counsel.

The general character of American legal practice has changed much for the worse during the past thirty-five years. I believe this has been chiefly a result of three developments: (1) the great growth in large firm legal practice; (2) the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona (removing restrictions on lawyer advertising); and (3) the degraded image of the legal profession due to the misbehavior of so many lawyers (including the U.S Attorney General in the Watergate scandal). These developments have caused the dominant ethos of American legal practice to become more that of business enterprise than of a learned, humanistic profession. A dozen or so books by distinguished attorneys and scholars published in the 1990s document and lament this trend.2 The pressing necessities of “the billable hour,” the loss of the mentoring system in law firms, and a common collective loss of memory of the true roots of the American legal profession in history—the common law and the Unites States Constitution—have led to a common ethos in legal practice encouraging the “gun-for¬hire,” “Ambulating,” and “take-no-prisoners” mentalities that have widely corrupted the professional behavior of lawyers. Experiencing this corruption can sometimes make the practice of law an unpleasant experience.

Lawyers who do not take their constitutional oaths as seriously as they should—that is, who do nor make the pursuit of justice a paramount concern in the exercise of their calling3—are also likely to ignore the spirit of reason and civility that defines the essential character of the law. Having to deal with such lawyers is the worst thing about being one. The uncivil lawyer is well-armed with self-serving, self-interested excuses for his or her behavior:

“I’m only doing what my client wants me to do,” or “I’d prefer to be civil, but I have to deal in kind with all those other uncivil lawyers to protect my clients’ interests.”

These excuses—half-truths at best—generally mask the abrogation of a lawyer’s professional responsibilities as counselor and peacemaker, and often amount, in my opinion, to chosen Incompetence. As Elihu Root, the great New York civil lawyer and Secretary of State under President Theodore Roosevelt, said, “About half the practice of any decent lawyer consists of telling would-be clients that they’re damned fools, and should stop.” In contrast to the ubiquity of these public excuses and rationalizations for uncivil behavior in legal practice, I have never met any lawyer—including self-professed “Rambos”— who does not admit, at least in private, that if he or she and opposing counsel had dealt with each other with discreet candor and civility, and counseled their clients skillfully and with reason, many of their most difficult cases could have been settled in a small fraction of the time it took to resolve them through the costly, stressful, and often unnecessary procedures of formal discovery and litigation.

The contradiction between this practically self-evident and almost universally understood truth and the typical behavior of practicing lawyers today is the least-great thing about being a lawyer. As an incorrigible optimist, however, I see some possible antidote to this situation in the growth of mediation and in the recognition of its economies by corporate America. Now, if our law schools could also evolve to address the critical need to educate students as better negotiators and problem-solvers and de-emphasize the lawyer’s role as warrior, I could more confidently predict that the next generation of lawyers would be less likely to complain about what is not-so-great about being a member of our profession. I would add, more than by the way, that, given America’s present place in the world, a return to great civility in the practice of our profession could make an important contribution to world peace.[4]

NOTES
1. “Cashing in On Conflict,” The Washington Post, June 5, 1996; “The Triumphs of Law and Lawyers in the United States,” The Hellenic Journal, June 16,1995.
2. See e.g., the citations in Sheppard, “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237, 246, note 19 and passim, Winter 1996.
3.See, e.g., Sheppard, “Legal Education and the Future of the Republic,” a talk to the Yale Law Club of San Francisco, published in Vital Speeches of the Day, April 5, 1998.
4. See, e.g., Sheppard, “A Lawyer’s Christmas Message,” San Francisco Chronicle, December 25, 1997.