A lessee of commercial office space complains that the common areas are not being properly maintained. The local high school has just banned Catcher in the Rye. Again. A prestigious law firm fires a first year associate because he refuses to remove his new “tongue stud.” These seemingly disparate disputes have one quite obvious but ill understood characteristic in common – they are all examples of unresolved conflicts that have ripened into discrete disputes.
Pretend for a moment that you never went to law school. I know. It’s hard. But give it a shot.
Lawyers (those other people who went to law school) are are trained to understand, manage and remedy all disputes, no matter however different they might be, in a single, highly controlled manner.
To help their clients deal with the problems mentioned here, lawyers will read the lease; research the latest Supreme Court rulings (“Fuck the draft“); and, study the statutes. Once they understand the facts that are relevant to the law, they “think like lawyers.”
How do they do that? “Think” like lawyers?
First, they subject the facts and the law to as much scrutiny as any idea can bear before it disintegrates into the dust of first principles. They create a chronology of events, highlighting and tailoring the “story” of the conflict that “fits” the available “causes of action” giving rise to “rights” in their client, obligations in their “opponent” and remedies for the harm suffered.
This “legal” dispute was once about a relationship between people. Now it is an “actionable” claim in an extremely controlled process in which one of the parties will “win.”
That, of course, rarely happens because the legal system has become too expensive and the law too uncertain for most people to risk what used to be it’s goal — a jury trial.
Lawyers recognize frivolous or baseless or “defendable” claims by observing just how uncomfortably the “facts” sit inside their opponent’s “causes of action.” When called upon to justify their entitlement to get their client’s claim before a jury (demurrers, motions for judgment on the pleadings, summary judgment motions, non-suits) the Plaintiff’s attorneys can and will simply change the way the story is told. They make the facts fit the law. There’s nothing wrong with that. That’s their job. If the facts won’t “fit” the law, lawyers apply themselves to the law’s creative expansion.
What attorneys do not learn in law school is how and why conflict develops into a dispute and then predictably evolves, usually getting more acrimonious and difficult to resolve.
My friends who are lawyers (I never went to law school, remember? and neither did you) tell me that they know how to escalate conflict but not how to de-escalate it. They also tell me that they see a lot of injustice. Sometimes the injustice arises because the laws themselves are unjust. Sometimes the tragic and unfair consequences of human interactions just don’t have any legal remedy. And sometimes the legal process itself makes disputes worse — more protracted, frustrating and expensive — rather than better.
In common law countries, like ours, where the law is forged in the fire of conflict, shouldn’t attorneys be taught not only how to “win the case” but also how to dampen the flame? Most litigators I know would respond with a resounding “no!”
Conflict resolution that is not “handled” as litigation or arbitration is for some other professional to deal with. Therapists come to mind. Don’t they help the parties deal with that most uncontrollable aspect of any dispute — something not only lawyers but the law itself exclude from the legal action?
Feelings. Not just sad or mad feelings. But the type of feelings that make teenagers shoot other teenagers on the streets of Los Angeles. Feelings of loss, tragically unfair outcomes, powerlessness, rage and despair.
The purpose of this post and the new thread that it is meant to begin? To start something radical.
If you’re not aware of what I’m about to tell you, you should be.
TED is devoted to giving millions of knowledge-seekers around the globe direct access to the world’s greatest thinkers and teachers.
(image links to the Photography site of Lars Kirchhoff)
I was just talking to a friend over coffee the other day about how we’re using 18th Century technology (the jury trial) to solve 21st Century problems.
Here’s the idea. A legal TED Conference.
If you’ll look at what TED accomplishes, you’ll know what I don’t mean. I don’t mean a conference to trot out any new/old “ADR” ideas — mediate this, arbitrate that, create new rules and forms for the lawyers to use.
I mean creating the highest level think tank we can to first envision and then implement a dispute resolution technology that incorporates what we’ve learned since we first enshrined the jury trial in our Constitution more than 200 years ago.
I have one man in mind — Larry Lessig. But surely there are others. The first step would be to suggest names for the coordinating committee.
Why do I think of TED? Because what it envisions cannot be accomplished. It cannot even be envisioned. It’s a fool’s errand. One I’d be willing to spend the rest of my own life working on.
Would anyone care to join me?
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