One of my early experiences as a litigator in New York came at a court conference on a case I had in Bronx Supreme Court. For those of you who don’t practice in New York, the Supreme Court there is the trial court (I guess it’s an ego thing) and the Bronx courthouse is anything but supreme. With long daily dockets that dwarf anything I’ve seen in the busiest courts in Massachusetts, depositions taken in the court hallways, and the pace of court clerks going through the docket that would make the fastest rocket docket here look like slow motion, working as a new lawyer in Bronx Supreme Court is trial by fire.
One experience that stuck with me came when opposing counsel stated his position, legal arguments and facts of the case to the judge at this conference. He just out and out lied several times in less than five minutes. I knew he was lying, he knew he was lying, he knew that I knew he was lying and in all likelihood, the judge knew it too. But this lawyer stood there with a straight face and a voice of great conviction and spit out lies. When I called him on it after we left the courtroom, he looked right at me and said that everything he said was true. I knew I could not trust him and he didn’t care. This was a low moment for a profession I view as an honorable one that calls on every lawyer to act honorably. In 11 years of litigating in New York, I got to work with and against some of the finest lawyers of the highest integrity I know. But I also had to deal with some disgraceful excuses for lawyers who provided fodder for all the insulting lawyer jokes.
Years later I find myself practicing in a much smaller legal community, where it’s easier to keep a book of who’s honest and who’s not and, to their credit, most lawyers I’ve gone up against are honest. Working in the mediation and Collaborative Law communities has given me the chance to work with some amazingly talented and thoughtful attorneys. These are people who exude trust and integrity, and inspire me to be proud of the legal profession.
Trust and integrity. Authenticity and respect. Transparency and collaboration. These are not terms or values that are commonly associated with lawyers. But they should be, as they should be in every profession. It is not without shortcomings, but at its best, the law is an honorable and elegant profession.
These days I find myself referring to lawyers on the other side of cases as “counterpart counsel” and have often used the phrase “good working with you on this case” in talking to them about our cases. The changed references to other lawyers reflects an important paradigm shift in how we view our roles and our relationship. I see myself as legal counsel and advocate for my client, but also as a problem solver working with another lawyer to find a good resolution of the dispute. The beauty of getting away from the adversarial approach is that lawyers can truly work together on cases, pool our intelligence, our experiences and our resources and develop solutions that better meet the needs and interests of our respective clients. When we replace competition and fighting with collaborating, we can achieve a better result. When we start to see conflicts as catalysts for progress, we can use disputes as opportunities for growth.
I want to go back to that notion of lawyers trusting each other. In cases where lawyers knew they could trust each other to be honest and act with integrity, it allowed us to be more transparent, to exchange ideas with each other and to build on good ideas from our legal counterpart. When the goal shifted from winning and beating the other side to both sides winning and achieving an outcome that was better than the situation that led to the dispute, it allowed us to do better work, give our clients the benefit of straightforward counsel and give our clients better representation.
This may seem very counter-intuitive for an overly litigious and competitive American society and an adversarial nature that feeds on the zero sum game of winners and losing. This modern American culture often views its lawyers as sharks and pit bulls who will manipulate the facts and the law so that their clients will win. But here is a truth I’ve learned in 25 years of practicing law: Lawyers are usually a reflection of their clients’ wishes and are the “hired guns” of those clients. People use those derogatory references above for lawyers, but when those same people are in a dispute, many of them immediately hire those very pit bulls to be their pit bulls. The marching orders to conduct “scorched earth litigation” and to “grind the other side into the ground” come from clients, not from lawyers. People talk about their pit bull lawyer with the swagger of a soldier, urging them to win at all costs and do whatever it takes. Yet those same people speak about lawyers in general who do what it takes to win with disdain. There’s an obvious inner conflict there, but too often people don’t follow that inner, quieter voice within.
People often quote Shakespeare’s line of “First, we get rid of the lawyers” to show that lawyers are the problem. But the full context of that quote goes on to show that the reason they wanted to get rid of the lawyers was because the lawyers stood in the way of creating anarchy; the lawyers were the custodians of keeping order.
Maybe the lawyers need to take the lead and set the tone of trust and integrity. Maybe we need to model these values along with those of respect, civility, honesty and fairness for the clients to follow our example. What if lawyers start telling clients that they trust the lawyer on the other side and can work together with that lawyer to accomplish the best result possible for their clients? And they advise that the process itself would be built on trust, and the clients were going to have to trust the lawyers to work in collaboration to achieve the optimum resolution?
What would that look like?
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