Ten Duel Commandments

I’ve been listening to the cast album from the musical “Hamilton”, in preparation for finally getting to see the show when it comes to LA later this summer. One of the bits of historical information that can be gleaned from this show concerns the rules of dueling, still a fairly common occurence in the early 19th Century. We may think we have progressed far beyond the barbaric practice of dueling, but based on the way dueling is described in this show, it appears to function in much the same way as as our more modern systems of dispute resolution today.

The so-called “ten duel commandments” reveal that the whole ritual of dueling actually incorporates a system based on negotiation. In the song that lays out the commandments of dueling, note that they provide at least three opportunities to back away from going through with the contest.  At the outset, the person challenged can avoid a duel by apologizing:

Number one!
The challenge: demand satisfaction
If they apologize, no need for further action

The person challenged to a duel need not accept. Backing down and making amends is another option. In the world of litigation, which has replaced dueling, the challenge corresponds to the initial demand letter or complaint. The party met with such a challenge can usually avoid further strife by agreeing with the demand, and paying up, or by negotiating a reduction in the demand. But parties who are challenged often resist backing down in the face of threats. They feel their own position is justified, so they respond with equal force. They accept the challenge to a duel; they file a counter-claim to the complaint.

At an intermediate stage in the duel ritual, a second opportunity for a peaceful resolution presents itself when the seconds meet:

Number three!
Have your seconds meet face to face

Negotiate a peace…
Or negotiate a time and place

Parties often arrange a duel in heat and haste. Cooler heads (their seconds) can defuse the situation. Similarly in litigation, parties need to hire more objective, dispassionate representatives (their attorneys) who can either defuse a volatile situation by negotiating a settlement, or can lay the groundwork for further conflict. As the song says at this stage, “Most disputes die, and no one shoots.”

Finally, when the parties are about to meet face to face, and must each contemplate the awful possibility that they will not survive the conflict, there is one final chance to avoid combat:

Number eight!

Your last chance to negotiate
Send in your seconds, see if they can set the record straight…

The loser may pay the ultimate price in a duel, and even the winner may also pay a price, as Aaron Burr learned when his reputation was tarnished by his duel with Hamilton. These are powerful incentives to avoid a fight. Similarly, in modern-day combat, we see that parties settle many lawsuits on the proverbial courthouse steps, when they finally face the high costs of the trial itself, as well as the possibility of losing. Hardly any contested lawsuits actually go all the way through trial.

The show “Hamilton” also suggests a fourth opportunity for a way out, which is to fire your pistol in the air. But this only works if both sides do it, and in the show this method does not work out so well. I don’t recommend firing blanks as a way of conducting a trial either.

While combat is no longer approved as a way of resolving disputes, we can see that the system of dueling presented similar opportunities for peaceful resolution to those available in our current system. Only after three failed negotiations does a duel take place. Similarly today, most parties do not generally go all the way through with contested litigation as a means of resolving conflict. Once they are able to calculate the costs and risks of litigation, they usually find another way out. Any sophisticated system of dispute resolution, whether based on combat or based on litigation, should provide multiple opportunities to step away from the system itself.

                       

Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >