Lawyers as Problem Solvers and Warriors

Lawyers are, at least in large part, problem solvers. As litigators we deal with vibrant conflict, disputants who want to resolve their differences ... or not. As transactional lawyers we deal with the possibility for conflict in the future and try to plan for it. As negotiators, we try to help our clients resolve actual or anticipated conflicts without the aid of a third party decision maker. (And we should note, litigators are sometimes transactional, and transactional lawyers are sometimes litigators, and both are almost always negotiators at least some of the time.)

Conflict is the intersection, and often the clash, of competing values, interests, needs and desires. When that conflicting, clashing intersection is reached, we look to the rules (laws) of our culture to decide what should occur. Before there were laws in our culture the way conflicts were resolved, if they were not avoided, was through violence: “might made right.” Because it was understood not all people could equally defend themselves or physically press their claims equally, the idea of substituting “champions” for the weak and infirm emerged. Eventually, champions were allowed to stand in for all others, except in very limited circumstances.[1]

The problem is that while we as a culture have advanced for the most part over the centuries from the purely physical level of resolving conflict, we still live with the metaphors remnant in our profession of the physical level of resolving conflict that preceded us. [2] For centuries we have lived in our Western, Anglo-Saxon culture with the idea of lawyer as “warrior,” zealously advancing his client’s cause in court or at the negotiating table, seeking a “victory” or “win.” We talk about court “battles” and “destroying the other lawyer’s arguments.” We “crush” our adversaries, “hide the ball”, make “rapier” like arguments, and attack with the “broad sword” of truth and justice.

We are contentious, “shark like”, and we have been the butt of merciless lawyer joke humor that has reflected a public disdain for the perception that we will do anything to prevail.[3] After all, we are expected to “win” if we cannot otherwise resolve the matter. And that view (the need to win), I’d like to suggest, has had serious consequences for our health, individually and collectively as lawyers and as members of a larger citizenry. It has also limited some of the potentialities we hold as conflict assessors and resolvers to help heal the hurt and pain of conflict. I hope to add more on these latter subjects later, but in the meantime wonder what thoughts you might have about the role of lawyers in society as it has unfolded to date, and as it might unfold in the future.



[1] See, for example, and as a more extensive discussion of lawyer as warrior, Antonin I. Pribetic’s essay, The Trial Warrior: Applying Sun Tzu’s the Art of War to Trial Advocacy, found at  http://works.bepress.com/cgi/viewcontent.cgi?article=1009&conte... on July 8, 2011.

[2] The fact that we also still condone physicality as a way to resolve conflict (e.g. self-defense, corporeal punishment and war) is beyond the scope of this article.  Ideally I would like to think a time may come when we will not so willingly embrace these conflict resolution methods (excuses?), but I suspect that time of necessity is likely to be a long way off in the future, if ever it comes at all.

[3]According to one source writing on the subject in 1997 there were 3,473 websites then devoted to lawyer jokes.  For the source, and further commentary, see, Marc Galanter, “The Faces of Mistrust: The Image of Lawyers in Public Opinion, Jokes and Political Discourse,” 66 U. Cin. L. Rev. 805 (Spring 1998), citing David L. Yas, “First Thing We Do Is Kill All the Lawyer Jokes,” Mass. Law Wkly., October 20, 1997.

 

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