This is Part 2 of a multi-part series. If you haven’t, be sure to read Part 1 first.
Now that the background for ADR has been set, let’s move on to the paper itself.
Alternative Dispute Resolution as a Lawyer’s Primary Strategy
By Dominic Andriacchi, Jr.
In the legal profession, alternative dispute resolution encompasses everything about a lawyer’s practice except the trial stage. Negotiation, mediation, arbitration, settlement, etc. are all lumped into “alternative dispute resolution.” Trial, on the other hand, is presumed to be the “normal” dispute-resolution method. But, this drastically constricts the possible ways a lawyer can perform their job successfully. Also, by reversing the focus from trial to ADR, this allows the lawyer to use more creativity in successfully resolving disputes to the benefit of all the parties involved. Therefore, ADR should be a lawyer’s primary strategy and trial the alternative.
I. A lawyer is most like a politician, not a general.
We say that lawyers fill many different roles when they take on a client. Lawyers are counselors that do what’s in the client’s best interest (even if they don’t understand it), they are negotiators that negotiate on their behalf, and they’re advocates that try to persuade judges and juries to see their client’s side of the story.
Likewise, politicians fill many of the same roles for their constituents. (Although just because you are a lawyer does not mean you can be a statesman. Cicero, arguably the best and most famous lawyer in history was a pretty bad statesman. Well, as far as Julius Caesar was concerned anyway.) Yet, we don’t view lawyers as politicians on behalf of a select constituency: their clients.
Instead, lawyers – and their clients usually do too – view themselves as generals. They picture the iconic Napoleon sitting on his horse on a battlefield with cannon shells bursting overhead, musket fire whizzing all around him, and the screams of dying men wafting in the air. “Yeah, that’s me!” No, not quite. Replace the horse with a leather chair, the battlefield with the computer screen, and the sights and sounds of warfare with insults and rushed filings and you may be close though.
Either way, it warrants two questions: (1) What does a general do? and (2) What does this say about lawyers? Well, generals are to destroy the enemy and attain as much resources for the nation as possible. Viewing lawyers as primarily generals and not statesmen would mean that a lawyer’s job is to do nothing but cause as much pain and damage as possible on the opposing party while taking as much as possible – usually money – for the client. But, this neglects other roles the lawyer performs, and, more often than not, is generally not desirable.
Even the most justified wars throughout history, including the American Revolution, is nasty business for all involved. Don’t think so? Let’s see what one of the men primarily responsible for the Revolution had to say:
There was never a good war nor a bad peace.
So how did our understanding get this way? Well, it all stems from a fundamental misunderstanding of the interplay between politics and warfare. But, through revisiting some of history’s best military theorists and strategic thinkers, we can fix our misunderstanding and see how a proper realignment between politics and warfare can positively impact a modern law practice.
That’s the end of this installment. Be sure to check back often, add this site to your RSS feed, and let me know your thoughts down in the comments on ADR regardless of whether you’re a lawyer!