Category Archives: Legal Ethics

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.

When Lawmen Ignore Rule of Law

Published in the San Francisco Chronicle, May 21, 1998

MACHIAVELLI, a government official with a practical grasp of political realities, gave the following title to a Chapter of one of his books:  “It Is A Bad Example Not To Observe the Laws, Especially on the Part of Those Who Have Made Them; And It Is Dangerous For Those Who Govern Cities To Harass The People With Constant Wrongs.”   I am a “law and order” man with a passion for the rule of law.  But the experiences I’ve had with our criminal justice system are making me think that too many lawyers responsible for law enforcement seem to consider what they are doing either a kind of game, a political career gambit, or just another business, despite their sworn oaths to uphold the law.

I have been practicing civil law for more than thirty years.  But in each of the only two serious criminal matters I’ve had –one of which involved two California counties– two of the three Assistant DA’s in the cases blatantly ignored the facts and the law for the sake of the game.  (As a San Franciscan, I’m pleased to add that the one Assistant DA out of the three who showed interest in the actual facts of the case, and who agreed not to oppose the truth, was the San Francisco Assistant DA.)  The first case was a Petition to a Court to certify that a man who had committed several felonies was rehabilitated (so he might qualify for a pardon). The Assistant DA of a Southern California County opposed the Petition, while admitting to me that his opposition memorandum was wrong –both as a matter of fact and as a matter of law– and that our memo was correct in both respects.  But he wouldn’t withdraw his opposition, he said, because it was the “policy” of his office to oppose all such Petitions.

In the second case, the records of the DA showed that he had never read or considered evidence we sent to him before he filed the complaint; evidence which showed that the defendant could not as a matter of law have committed the alleged offense.  The complainant was a local citizen with highly questionable motives.  A lawyer who was a supporter of the investigating detective (who was running for Sheriff), told me that it was the “policy” in that County, when a criminal complaint was made by a citizen, “to throw things against the wall and see if they stick.”  By my definitions, this is not obedience to the rule of law by prosecutors: it is arbitrary, tyrannical rule by those “who govern cities;”  —-and  it is government harassment.

One of the first purposes of our government as stated in the Preamble to the U.S. Constitution, is “to establish justice.”  I thought at first it was just my bad luck to run into two Assistant D.A.s whose narrow politics overruled the principle that the purpose of our laws is “to establish justice” –though this is a principle each of them had sworn an oath to uphold.  But I have been told by friends who practice criminal defense law –people of high integrity– that this attitude has become common among prosecutors.  Their excuse is often that they are just “too busy” to take the time to evaluate criminal complaints as seriously as they know they should, so they leave it to the courts to do the work of justice for them.

As a member of the middle class and a grandfather, of course I want our streets to be safe and criminals prosecuted swiftly and effectively.  But respect for the law is something that grows or shrinks by the example of those who make and enforce the laws.  A young person doesn’t have to be a bad character to get in trouble with the law once or twice during his impulsive youth.  What respect are young defendants likely to have for the law when, during such encounters, they learn from their private attorneys or public defenders that the DA’s office doesn’t really have time to consider the facts or, in many cases, even really care very much about justice?  In such an environment, you would expect, wouldn’t you, that a jury with men and women on it who knew of such prosecutor attitudes, might even want to free a guilty person now and then to set an example?   And you would also expect even young, idealistic criminal defense attorneys to learn soon that truth and justice are only hollow words to criminal prosecutors, so that they will have to “play the game” just as ruthlessly, whether their clients are guilty or innocent.  Level-headed Machiavelli told us that when those who make and enforce the law disregard it

“the consequence is that such disregard becomes the habit of the people themselves, who cease to organize the government for the general good, but instead only act with the view of benefiting their own party, which, instead of establishing order in the republic, only tends to increase disorders.”

If it takes more money to staff DA’s offices with people who can remember their sworn duty to uphold the Constitution while they’re doing their job, I for one would be willing to pay for it in taxes. The way DA’s offices work now, there is a good chance that any troublesome or disturbed person could cause me, or my grandchildren –or you– enormous unnecessary stress and expense because some DA is willing to “throw their complaint against the wall to see if it sticks,” without bothering to think about what that could do to me, or to my grandchildren or to you –or to our system of government.

(C) 1998, Harrison Sheppard