The Washington Post
June 5, 1996
Cashing in on Conflict
Cashing In On Conflict
by Harrison Sheppard
Whether or not you have ever hired a lawyer, the behavior of lawyers is taking money out of your pocket. It is also putting you into a kind of prison without bars by making you more fearful about many ordinary human interactions. The character of much American lawyering has changed American life for the worse.
When I went to law school, I believed that being a lawyer was not only a good way to earn a living but a good way to live. It seemed to me then–as now–that the main purpose of being a lawyer is to help advance justice, peace, and human freedom. But law school was a shock to me. Not once in my three years of study was there ever a discussion of how a practicing lawyer can help advance these great ideals. Instead, law school taught me how to argue aggressively, with no quarter given or taken, and how to fight an opposing point of view with uncompromising technical skill.
Like most law schools then and now, mine didn’t require that students learn how to negotiate. Even today, no law school aims to help students develop practical wisdom, human insight or the ability to deal empathetically with an opposing view.
American law schools are exactly the kinds of institutions you would create if you wanted to promote a kind of civil war instead of civil peace. Law schools are not schools for resolving conflict harmoniously; they are schools to help promote profitable conflict. It’s no wonder that American lawyers have become, in the eyes of most people, bad jokes.
The lawyer as counselor, conciliator, problem-solver and planner used to be the model of the profession in this country. This model has been replaced by the gun for hire, the mercenary warrior. This is no longer merely irritating; in our highly individualistic, increasingly fragmented society, it has become downright dangerous. The tactics of litigating lawyers, in both civil and criminal matters, are causing the public to lose respect for our system of justice, The consequences are all too visible.
Most valid legal claims today seem to be without effective remedy, because litigation costs are likely to exceed the losses suffered. But the warrior model of legal practice–what Harvard Law School Dean Roscoe Pound called “the sporting theory of justice”–does more than frustrate rightful claims. It also adds tremendous costs to almost everything produced and every service rendered. It requires thousands of work years of unproductive effort, as well as needless stress and social disruption. It increases, to take one important example, the cost of medical care by making hospitals and physicians wary of medical malpractice suits, forcing them to use costly procedures that are often unnecessary.
The most common defense aggressive lawyers make about their behavior is that they are doing what their clients have instructed them to do and are representing their clients’ interests. This is often a self-serving defense for a lawyer’s irresponsibility. It was answered a long time ago by a great American lawyer, Elihu Root, who said: “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” It is, in other words, reason and humanity that should guide those who practice law. Here are some things we can do as clients, citizens and public-minded lawyers to help bring about changes in the way many lawyers practice law:
We have to examine the motivations (and expectations) involved in forming the lawyer-client relationship. It is often natural for someone to seek legal advice with a desire for justice so excited that it amounts to vengeance. But every lawyer should want to serve his or her client’s best interests. A hired gun only shoots bullets; what clients really need is the help of someone who can produce an outcome they can live with, even after anger has subsided, by resolving conflicts harmoniously.
We need to become more aware of and used to alternatives to litigation to help resolve business and personal conflicts–skillful negotiation or mediation and arbitration, for example. Though litigation may sometimes be necessary as a last civil resort, much of it is a failure of one or more lawyers to be wiser than their clients. Helping to solve a client’s problem with skillful counseling and negotiation is the kind of legal service most clients–particularly business clients–appreciate far more than costly, stressful litigation. And success as a peacemaker brings referrals and builds a client base; it is good for business.
ïWe should explore arrangements other than the billable hour for the lawyer’s compensation that will help motivate lawyers to identify the most efficient solution to a problem. The tendency of same lawyers to “keep the meter running” inevitably delays resolution of clients’ problems. If, as a business person, you have been frustrated by this tendency, you should discuss with your lawyer compensation strategies that give your lawyer financial incentives to serve you more efficiently.
The character of American legal education needs to become a subject of serious national discussion. Financial and political support needs to be found for alternative law schools that better prepare young lawyers for their responsibilities. Law schools are the training grounds for our judges as well as our lawyers. They are not adequately providing students with the skills they need to determine facts, understand a client’s situation, counsel clients wisely, negotiate solutions and recognize the most practical, economical and stress-free means of resolving a client’s situation.
The American legal profession and its most accomplished members have proven themselves to be among the most civilizing and progressive forces in history. American lawyers, going back at least to Thomas Jefferson, have helped to provide hope for a better life to all the world. To help increase the chances that our American future will be as bright as its promise, we need to do what we can to encourage restoration of the model of the American lawyer as a peacemaker.
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