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.