Editor’s note: This post was reposted from the AboveTheLaw website.
 |
| Credits -Google |
I recently had lunch with a friend who I
haven’t seen in many years. She shared that she’s been in litigation for seven
years with her ex-boyfriend, who was also her business partner. She won in
trial court, but the case has been appealed all the way up to the state supreme
court, and the ex is now threatening to appeal it to SCOTUS.
haven’t seen in many years. She shared that she’s been in litigation for seven
years with her ex-boyfriend, who was also her business partner. She won in
trial court, but the case has been appealed all the way up to the state supreme
court, and the ex is now threatening to appeal it to SCOTUS.
I asked her if she wanted to litigate the case
and she said sure, in the beginning, because she was angry at her ex. Now,
she’s not even sure what they’re fighting about. She’s too vested in the case
to walk away and clearly, both sides have been digging in their heels and are
now neck deep in the quicksand called our “justice system.” She hired a
well-respected law firm, and needless to say, the only parties that are happy
with this situation are the lawyers.
and she said sure, in the beginning, because she was angry at her ex. Now,
she’s not even sure what they’re fighting about. She’s too vested in the case
to walk away and clearly, both sides have been digging in their heels and are
now neck deep in the quicksand called our “justice system.” She hired a
well-respected law firm, and needless to say, the only parties that are happy
with this situation are the lawyers.
She shared her frustrations with the legal
system, her attorneys, and mainly herself for thinking that somehow, all the
anger and frustrations of this business (and romantic relationship) failing
could be fixed by the ruling of the judge.
system, her attorneys, and mainly herself for thinking that somehow, all the
anger and frustrations of this business (and romantic relationship) failing
could be fixed by the ruling of the judge.
I have another friend who is a lawyer whose
mother died as a result of malpractice. After two years of litigation, she
finally got a settlement. I asked how she felt, and she said she was really
unhappy. The only thing she ever wanted from the case was to be able to
sit down with the doctor and talk to him. She wanted to understand the
circumstances that led to the death of her mother — from the doctor’s mouth.
She felt this dialogue with the “wrongdoer” would give her closure.
mother died as a result of malpractice. After two years of litigation, she
finally got a settlement. I asked how she felt, and she said she was really
unhappy. The only thing she ever wanted from the case was to be able to
sit down with the doctor and talk to him. She wanted to understand the
circumstances that led to the death of her mother — from the doctor’s mouth.
She felt this dialogue with the “wrongdoer” would give her closure.
Most lawyers probably have had these types of
experiences where despite getting a winning result for their clients, the clients are still unhappy. The clients are
generally unhappy because a) they never wanted to be in this situation, b) they
did not understand how much time, effort, and money it would take to
“win,” and c) the justice system is often anything but “just,” and the victory
imagined is often not very satisfying.
experiences where despite getting a winning result for their clients, the clients are still unhappy. The clients are
generally unhappy because a) they never wanted to be in this situation, b) they
did not understand how much time, effort, and money it would take to
“win,” and c) the justice system is often anything but “just,” and the victory
imagined is often not very satisfying.
Which brings me to the question — what is the
role of a lawyer? A simple answer is that our role is to zealously advocate for
our client’s interest. But what does that really mean? In my first example, was
my friend’s interest being best served by fighting to the bitter end? For what
actually turns out to be unresolved anger stemming from the failed
relationship? In my second example, did the malpractice attorney really
advocate for her client when the client made it very clear what she deeply
desired was an opportunity to speak with the doctor — and not money?
role of a lawyer? A simple answer is that our role is to zealously advocate for
our client’s interest. But what does that really mean? In my first example, was
my friend’s interest being best served by fighting to the bitter end? For what
actually turns out to be unresolved anger stemming from the failed
relationship? In my second example, did the malpractice attorney really
advocate for her client when the client made it very clear what she deeply
desired was an opportunity to speak with the doctor — and not money?
Before we had law and order, before we lived
in a civilized society, people resolved their disputes through physical fights
(usually to the death). Then we as a society decided that maybe killing each
other to resolve conflict wasn’t such a great idea. So, now we have law and
lawyers. But there is still a remnant of the origins in that when a client
hires a lawyer, oftentimes, they’re hiring a skilled mercenary.
in a civilized society, people resolved their disputes through physical fights
(usually to the death). Then we as a society decided that maybe killing each
other to resolve conflict wasn’t such a great idea. So, now we have law and
lawyers. But there is still a remnant of the origins in that when a client
hires a lawyer, oftentimes, they’re hiring a skilled mercenary.
I was reading a book titled The Compassionate Lawyer, by Kimberly J.
Stamatelos (affiliate link). (You can listen to my interview with Kim here.)
She practices family law, mediation, and collaborative divorce. In the very
first page of the book is this quote:
Stamatelos (affiliate link). (You can listen to my interview with Kim here.)
She practices family law, mediation, and collaborative divorce. In the very
first page of the book is this quote:
Discourage
litigation. Persuade your neighbors to compromise whenever you can. As a
peacemaker the lawyer has superior opportunity of being a good man. There will
still be business enough.~Abraham Lincoln
litigation. Persuade your neighbors to compromise whenever you can. As a
peacemaker the lawyer has superior opportunity of being a good man. There will
still be business enough.~Abraham Lincoln
In law school, we’re trained to think that all
legal disputes must be resolved by the court system. We are rarely trained in
Alternative Dispute Resolution (ADR), mediation, or to simply help our clients
to move past the anger and see the situation with more clarity.
legal disputes must be resolved by the court system. We are rarely trained in
Alternative Dispute Resolution (ADR), mediation, or to simply help our clients
to move past the anger and see the situation with more clarity.
It was interesting talking to Kim because even
just a decade ago, mediation was dismissed as nonsense. What good would it do
for the parties to talk to each other? That’s just crazy. Of course, now,
mediation is widely available and is often mandatory. At least some portion of
lawyers are moving towards becoming as Lincoln suggests, “peacemakers.”
just a decade ago, mediation was dismissed as nonsense. What good would it do
for the parties to talk to each other? That’s just crazy. Of course, now,
mediation is widely available and is often mandatory. At least some portion of
lawyers are moving towards becoming as Lincoln suggests, “peacemakers.”
There are many movements towards this goal,
including ADR, Conscious Capitalism, Problem-Solving Justice, Conscious Contracts,
Conscious Uncoupling, Restorative Justice, and of course, mediation.
including ADR, Conscious Capitalism, Problem-Solving Justice, Conscious Contracts,
Conscious Uncoupling, Restorative Justice, and of course, mediation.
I recently sat down and interviewed Judge
Bruce Peterson from Minnesota, and I was surprised to hear
about all the things the courts are doing to actually help the offenders. He
was also in the process of putting a curriculum together for a course on
Lawyers As Peacemakers for a local law school.
Bruce Peterson from Minnesota, and I was surprised to hear
about all the things the courts are doing to actually help the offenders. He
was also in the process of putting a curriculum together for a course on
Lawyers As Peacemakers for a local law school.
In this week’s New Yorker, in an article
titled You Really Don’t Have To Work So Much,
the author addresses the friction between the social function of law — dispute
resolution — and the almighty billable hour.
titled You Really Don’t Have To Work So Much,
the author addresses the friction between the social function of law — dispute
resolution — and the almighty billable hour.
Consider the litigation system, in which the
hours worked by lawyers at large law firms are a common complaint. If
dispute resolution is the social function of the law, what we have is far from
the most efficient way to reach fair or reasonable resolutions. Instead, modern
litigation can be understood as a massive, socially unnecessary arms race,
wherein lawyers subject each other to torturous amounts of labor just because
they can. In older times, the limits of technology and a kind of
professionalism created a natural limit to such arms races, but today neither
side can stand down, lest it put itself at a competitive disadvantage.
hours worked by lawyers at large law firms are a common complaint. If
dispute resolution is the social function of the law, what we have is far from
the most efficient way to reach fair or reasonable resolutions. Instead, modern
litigation can be understood as a massive, socially unnecessary arms race,
wherein lawyers subject each other to torturous amounts of labor just because
they can. In older times, the limits of technology and a kind of
professionalism created a natural limit to such arms races, but today neither
side can stand down, lest it put itself at a competitive disadvantage.
Which brings me back to the broad question of
the role of lawyers in general, but perhaps more applicably, your
role as a lawyer. You get to define for yourself how you want to practice
and what kind of lawyer you want to be.
the role of lawyers in general, but perhaps more applicably, your
role as a lawyer. You get to define for yourself how you want to practice
and what kind of lawyer you want to be.
In my recent interview with Jim Dwyer,
a personal injury lawyer in Portland, Oregon, who also blogs at Tipping
The Scales, he shared that his first priority when a client
walks into his office is to help the client restore his or her health. Think
about that. Many PI lawyers want their clients to remain injured, or at least
continue to suffer as a result of the injury because that may lead to greater
financial compensation.
a personal injury lawyer in Portland, Oregon, who also blogs at Tipping
The Scales, he shared that his first priority when a client
walks into his office is to help the client restore his or her health. Think
about that. Many PI lawyers want their clients to remain injured, or at least
continue to suffer as a result of the injury because that may lead to greater
financial compensation.
Practicing law is an incredible privilege. We
have the power to make an impact — both small and large. Yet, rarely do we as
lawyers contemplate the type of impact we want to make in the world, or what is
indeed in the best interest of our clients.
have the power to make an impact — both small and large. Yet, rarely do we as
lawyers contemplate the type of impact we want to make in the world, or what is
indeed in the best interest of our clients.
Finally, I’ll leave you with this eloquent
quote by Chief Justice Warren Burger from 1984.
quote by Chief Justice Warren Burger from 1984.
The entire legal profession – lawyers, judges,
law teachers – has become so mesmerized with the stimulation of the courtroom
contest that we tend to forget that we ought to be healers of conflicts.
law teachers – has become so mesmerized with the stimulation of the courtroom
contest that we tend to forget that we ought to be healers of conflicts.
For many claims, trials by adversarial contest
must in time go the way of the ancient trial by battle and blood. Our system is
too costly, too painful, too destructive, too inefficient for a truly civilized
people.
must in time go the way of the ancient trial by battle and blood. Our system is
too costly, too painful, too destructive, too inefficient for a truly civilized
people.
Jeena Cho is co-founder of JC
Law Group PC, a bankruptcy law firm in San Francisco, CA. She is
also the author of the upcoming American Bar Association book, The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law
Practice Using Meditation (affiliate link), as well as How to Manage Your Law Office
with LexisNexis. She offers training programs on using mindfulness and
meditation to reduce stress while increasing focus and productivity. She’s the
co-host of the Resilient Lawyer podcast.
You can reach her at smile@theanxiouslawyer.com or on Twitter at @jeena_cho.
Law Group PC, a bankruptcy law firm in San Francisco, CA. She is
also the author of the upcoming American Bar Association book, The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law
Practice Using Meditation (affiliate link), as well as How to Manage Your Law Office
with LexisNexis. She offers training programs on using mindfulness and
meditation to reduce stress while increasing focus and productivity. She’s the
co-host of the Resilient Lawyer podcast.
You can reach her at smile@theanxiouslawyer.com or on Twitter at @jeena_cho.
Reposted from the ff link – http://abovethelaw.com/2015/08/what-is-the-role-of-lawyers/