I worry sometimes that I write too much in generalities — praising joint sessions; exploring the social psychological implications of the adversarial system; or arguing with my imaginary detractors – the ones I believe are hectoring me to be more practical. So I have a small practical story to tell you on Independence Day that will lead to some of those generalities I can’t resist offering.
It is hour five of a mediated negotiation that has been at impasse all day. After asking some pointedly hard questions of the Plaintiff, I receive this candid response (more or less verbatim): I don’t see much point in bullshitting you. I don’t know if my litigation strategy will bear fruit or not. My client, however, is genuinely tired of waiting. He is simply unwilling to put off pay day any longer. He believes the Defendant has the money to pay him right now even if he doesn’t have the money to pay all of his creditors. He believes Defendant is robbing Peter to pay Paul to keep his business afloat. He’s tired of being Peter. He wants to be Paul.
I return to the defense caucus to report the disheartening news that the Plaintiff simply will not budge from the settlement posture he has insisted upon all day. He’s not dissembling. He’s willing to risk failure if the Defendant follows through on his threatened bankruptcy. He’s ready to try the case on the scheduled trial date fewer than thirty days from now.
“What does he think?” asks the Defendant, “that he can get blood from a turnip?”
“No, but he doesn’t believe you can’t pay him. He thinks you’re robbing Peter to pay Paul and he wants to be Paul.”
Defense counsel gets up, saying “it’s clear we can’t settle.”
Defendant remains firmly in his chair.
“Are you coming?” asks counsel, standing with one hand on the conference room door.
“I think your client may want to have a conversation with you,” I say, as defendant turns to me and says I can pay half of what’s owed within thirty days and the remainder within sixty, all secured by the stipulated judgment he asked for [the one in a sum calculated to insure compliance or presage bankruptcy].
Five hours of impasse. Two minutes of candor. Sixty seconds to settle.
This is not the result of my work but of the Plaintiff’s candor. All I did — all many of us do — is to refuse to give up until settlement appears hopeless to us and I guarantee you it always seems more hopeful to us than it does to counsel or the parties — hours and hours more hopeful. Why? Because an offered release from the steel trap of litigation that is held out long enough will eventually be accepted, particularly where the choice is voluntary release or the continued effort to gnaw one’s own leg off in an effort to escape.
The lesson? When one side speaks its own truth, the other side finally hears it.
What does this have to do with the Fourth of July? It has to do with overcoming the tyranny of another; with having the courage not only to visualize freedom, but to take bold action in the direction of its fulfillment. It has to do with the messy but boundless joy of self-rule, autonomy, and independence. It has to do with the courage required to give up hope that another will grant us the freedom we long for.
Happy July fourth and onward with our unlikely experiment with democratic rule coupled with the guarantee of liberty for those the majority might not so easily give it to.
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