February 2004

Respecting Lawyers

by Paul Lehto

A 1980s study by the American Judicature Society found that fully 70 percent of all winning litigants were not satisfied with the process. Presumably, something like 100 percent of the losers were not satisfied with the process, either. With numbers like these, is it any wonder that lawyers (who are so closely associated with the adversarial system) have reputation problems?

Full funding of the legal process, with more judges and shorter dockets, will not fundamentally transform the public's poor opinion of the adversarial process. Even if we justly create more "winners" in the litigation game, or reduce delays incrementally, we can still expect something like 70 percent of the winners and 100 percent of the losers to be dissatisfied with the process.

Still, as a wit once quipped, "Criticizing lawyers for litigation is like criticizing middle linebackers for hitting people." This resonates with most lawyers' sense that our colleagues (except possibly opposing counsel) are good, talented people, not the greedy, dishonest villains lawyers are made out to be. But with opposing counsel we are thrust into an adversarial relationship — thus, opposing counsel is the exception that proves the rule that it is the adversarial system that is troubling so many of us.

So should we blame the public for not suitably distinguishing between systemic problems and the faults that can fairly be said to be owned by lawyers? Perhaps, but it is also true that lawyers are in a unique position to influence and change the nature of the way disputes are resolved in our society, so we cannot escape all responsibility.

Some will be quick to cite the noble history of the adversarial process and its many contributions to society, especially in the creation and enforcement of individual rights and liberties. Yet regardless of whether you think the adversarial system will always be with us, or whether you see a day when progress brings us better ways of resolving all disputes, the historical successes of the adversarial system do not justify its one-size-fits-all monopoly on dispute resolution. As Wright, Garlo, and Price state in their article in this issue, "If a hammer is your only tool, every problem starts to look like a nail."

But physicians, who still enjoy much higher public-approval ratings than lawyers, still use "hammers." They have their "adversarial" methods of attacking cancers and bugs. But they have no such one-size-fits-all approach. Their overall goal is to heal their clients, and to restore them to their prior position of health or maximize their future health. Isn't that the same general insight as legally "making the client whole"?

Even though doctors listen to their patients to heal the body, and psychologists listen to their patients to heal the mind, and ministers listen to their congregants to heal the soul, lawyers seem to listen only for the legally relevant facts needed in order to kick someone's ass. Are we making our clients whole this way, or is the adversarial system speaking more strongly than our ethical call to make our clients whole again?

The parallelism above points to the idea that the purpose of all professions is really to heal, and, further, that the purpose of lawyers is specifically to heal conflict. Lest your cynicism make you think the healing metaphor is too limited, doctors know that even when amputation is required, healing is still the appropriate metaphor. Thus, where there is permanent change in the form of divorce, there is much healing to be done even if we have participated in effectuating the divorce. In most cases, the divorced people will still need to have a productive economic or parenting relationship.

The public may be ahead of us. Amid the headlines in the December 6, 2003 Seattle Times was the photograph of an African-American victim of a drunk driver (who was pregnant when almost killed) publicly forgiving the defendant at his sentencing. In the victim's arms was the baby (in her mother's womb at the time of the accident), who was saved only by a miracle of surgery. This forgiveness was met with what the Times called "torrents of tears" from the defendant.

While this remarkable story had many compelling elements, one that was missed was the sense of freedom from further suffering, anger, and regret that the act of forgiveness gives to the victim. Forgiveness, then, is in no way properly understood as primarily an act of charity toward the guilty. Consequently, when properly pursued, there is a tremendous service opportunity when lawyers help to free their clients from what can be a lifelong prison of anger over a loss that can't be undone, and there is tremendous job satisfaction potential for the lawyer as well. Many of the lawyers we would all consider great do a fair bit of this creative work already. But much more can be done.

All of this is fully within current ethical and moral constructs of lawyering. Lawyers are fiduciaries. As such, black-letter law provides that as fiduciaries, they have a duty of honesty, a duty of care, a duty of loyalty, and a duty to act in the best interests of their clients. And what is an unconflicted act of honesty, caring, and loyalty, but an act of professional love? Thus, one of the many forms of selfless love is the fundamental moral call of lawyers for their clients: we sometimes have to do things even though it is not in our own best interests.

Professional love requires more than just the adversarial system with mediation settlement conferences added on. Rather, the focus of this issue is to identify emerging ADR (Appropriate Dispute Resolution) as it provides lawyers with more opportunities to serve their varied clients well, and to be the dispute-resolution geniuses and problem-solvers the public has always dreamed we would be.

This is most topical. The WSBA's long-range plan has one of its nine points devoted to identifying and exploring emerging ADR. Local leaders like Stella Rabaut and others have been laying ground work, and offering coaching and related services for some time. The ABA Journal (December 2003) also features an article by President Dennis Archer on restorative justice and other themes. Archer quotes the Reverend Dr. Martin Luther King Jr., who simply defined justice (with slight variations from time to time) as "love correcting that which revolts against love." Or, if you remember your high school algebra rules of substitution and you prefer a bit more complexity, justice is "duty, loyalty, and caring correcting that which revolts against duty, loyalty, and caring."

The public, bless their souls, for all their occasional misconceptions about the system, still fundamentally believe that when they petition their courts for a redress of grievances (by filing a lawsuit, pro se or otherwise) that duty, loyalty, and caring require something other than the treatment they've received recently. Rather than effectuating an extralegal self-help remedy, their innocence and even vulnerability in believing that the court system would somehow correct the deviations from duty, loyalty, and caring that they've experienced is matched only by the intensity of their hatred for the system and every lawyer in it, as their hopes are dashed on the rocks of an adversarial system so fundamentally inflexible that essentially the only skill it has is transferring money from one pocket to another, with no one quite able to explain, or even really willing to listen to, their story. Heck, your own lawyer will quickly shut you up if you do anything but answer the questions the lawyers ask you for reasons apparent only to the lawyers. Is this a system any litigant should be satisfied with?

Whether or not you believe that a dispute resolution profession based on professional love (duty, loyalty, and caring) could give birth to many different and workable tools of dispute resolution that would yield broad consumer choice in dispute resolution, it is nevertheless clear that this route stands a much better chance of restoring lawyers to their positions of historical respect than declaring that every dispute should be resolved solely by litigation, and if the litigation doesn't involve enough money, then implicitly declaring that it is not worthy of the respect or the time of even a single lawyer or judge. This is the "realism" of the adversarial process. A more intelligent system would have lawyers appointed as special masters to resolve consumer disputes, who could often reach an arbitrator's decision for the cost of simply retaining a lawyer who knows he's bound for litigation. Because we still claim a form of effective monopoly, we need to care a whole lot more about people's experiences in the process.

And so let me conclude by suggesting that it would be a great time to be a lawyer if we could all (in spirit) say at the beginning of a new case, "Let's all sit down in the circle of love, because if we don't, I'm going to be forced to kick your ass!" At least then we could say we have tried, and we would have a moral permit of sorts to engage in the very adversarial system the public tells us they don't like, even when they win.

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Paul R. Lehto is an Everett business litigation and consumer-protection lawyer who retired from the WSBA Board of Governors in 2003. He can be reached at paul@lehtopenfield.com.

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