Wednesday, November 01, 2006

Legal Ethical Dilemmas III - Anger

Another common legal dilemma is the use of anger. A fellow Christian once told me that anger is a gift given to us by God in order to deal with evil. Anger is an appropriate reaction against evil. The Bible clearly allows this to be true. Jesus was angry when He threw the moneychangers out of temple. But the Bible also says that we need to have limits to our anger. We are “not to let the sun go down on our wrath.” If you perpetuate your anger and are angry all the time, or if you internalize your anger and refuse to give it acknowledgement or expression, the ends are the gradual destruction of mind and body. While anger is good at the appropriate times and in the appropriate amounts, it is corrosive and can be destructive in the wrong amounts or at the wrong time. There is a danger in the law of turning the law into a milk toast occupation in which righteous indignation has no role. But that danger is not the most common in our society.

Today we live in a world that is more and more politicized. People involved with plaintiff’s personal injury work often believe that industry is populated by vicious, cold-blooded robber barons who are eager to give the masses cancer, disease and destruction in order to make a quick buck. Conversely, lawyers involved in the insurance defense business are sometimes equally partisan. They often believe that the plaintiff’s bar is full of men and women who are encouraging fraudulent and frivolous litigation in order to make money at the expense of the economy and legitimate business practices. The plaintiff’s bar thinks that people are reckless with other people’s lives and health. The defense bar believes that the plaintiff’s bar is making demands that cannot be met in a fallen world. The defense attorney says life cannot be perfect and human life cannot be risk free. In order to live and have agriculture, industry and other means of feeding and clothing people, we have to undertake activities that have risks. And if society were to fully internalize all the economic externalities of those risks, we might easily restore ourselves to the quality of life present in the early Middle Ages rather than to the environmental paradise sought by the plaintiff’s bar. Each side has their argument and their perspective. More and more often attorney’s tempers grow short.

It is common among legal practitioners that they not only believe the other side’s tactics are malicious attempts to waste time and increase the costs of litigation rather than efforts at gathering genuine evidence to encourage settlement or prepare for trial. As tempers escalate, threats of sanctions and demands for additional rules and statutes designed to punish parties for asking too many questions or filing illegitimate claims grow greater and greater. There is a time for anger in practice—when faced with genuine and clearly identifiable evil. But most anger in practice today is counterproductive. Most lawyers are reasonable people. Though they are sinners, like all humanity, they are trying to do the best they can do for their clients. It is not their desire to impoverish society or to eliminate justice. While there are always some attorneys who are crooked, they are still, thankfully, not the majority of attorneys. Frequently a lot of the anger and bitterness in litigation comes about through misunderstanding. Lawyers have differences of opinion about the proper scope of discovery or the results that they think their discovery should achieve. When the other side resists answering questions that they believe are beyond the proper scope of discovery, or when they do not produce the documents or evidence that their opponents conjecture to exist, the result is not only anger but escalating threats and threatening court filings. Each side assumes the other side is being willful and malicious. I have found that it is far more productive to assume that the other attorney is simply trying to do his job. If one deals with an angry fellow attorney with kindness and concern rather than attempting to escalate anger and threats, the result is usually that opposing counsel relaxes and a productive dialogue can begin. It is odd in our society that we are so willing to be pacifists in international affairs, and claim that if people would all just decide that war is never the solution to problems, that everybody would agree and we would have universal peace. But in our private business and legal transactions where a genuine peace is far more possible than in international affairs, we refuse to agree that matters could be settled by reason and discussion, and insist on litigation as war.

When attorneys agree to talk with one another and to treat the litigation process as a rational exchange of reasoned views and material evidence, the process is more effective and easier on both of the parties and the attorneys. The stress and anger that comes from the assumption of sharp practice and retaliation is not worth what it produces.

It is true that clients frequently encourage litigation as war. The clients want their attorneys to be zealous and they believe that a gentle discussion between counsel may mean that they are being sold out for the sake of the ”good old boy network.” As a result, some attorneys engage in theatrics in order to appease their clients. But the proper role of an attorney is to be a counselor who persuades his client to do what is right, not to be a mercenary who engages in bloodletting for his client’s entertainment. Attorneys are the first line of defense against genuinely malicious clients. It is never in a client’s best interest to act maliciously or destructively. Skilled attorneys must always be at work to convince their clients to do what is right because doing what is right is what is really in your client’s best interest. Wrongs will eventually be discovered, if not by the trial court, perhaps by the heavenly court. Wrong does eventually out, and our job as attorneys is not to enable our clients wrong, but to counsel our clients to do what is right. Many lawyers are afraid to do this because they believe that counseling their clients in the right will lose them business. They prefer telling their clients whatever they want to hear and then happily billing the money necessary to pick up the pieces after their client’s will results in an explosion of litigation and accusation. But this is wrong. I have found that in reality when clients are counseled to do what is right and kept away from those gray areas that tempt their customers and fellow businessmen to litigation, the client is not only happy, but grateful. If people find out that you are an honest attorney who will tell them the truth and encourage them in the right way, you may lose a few angry clients but the general public will beat a path to your door. In addition, you will be a much happier attorney and live a longer and happier life. You will also contribute to a happier community and a happier world. While your belief that litigation need not be war will not end all wars, it may contribute to social stability and a community feeling. And if we love our neighbors as ourselves, isn’t that the sort of thing we should want for our neighbors?

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