Ethics in the Legal Profession
I’m taking Professional Responsibility right now, and I just came from a class where there was myriad discussion about advocacy v. mediation.
I almost feel like (at least my) law school has become so ridiculously PC that no one wants to argue for traditional lawyering anymore. Many people spoke about their desire for the legal profession to migrate towards more of an arbitration and mediation system in order to leave out the whole “fighting thing” (my quote, not theirs).
Some people added that the increased incidence of settlements is hinting at some sort of legal desire to move towards a non-advocacy system. What a terrible argument. Settlements [generally] don’t happen because the parties want to eat tea and crumpets while coming to a reasonable solution. Most of the time, it’s a strictly tactical decision: avoiding precedent, waste of money/time, it’s better than gambling and losing, etc.
I’m of the mindset that I came to law school with a particular personality best suited for advocacy, and that’s what I intend to do for a career. I’m not here to babysit anybody. If you are, that’s perfectly fine, but let’s stop pretending that everyone has [or even should have] everyone else’s best interests in mind.
There’s nothing like a legal ethics course to make me realize that I belong in biglaw.
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amen.
ADR works in some situations, but first and foremost you need to be a zealous advocate. i believe in the adverary system’s ability to dig up facts in sticky situations, but it’s not going to work unless lawyers are willing to be adversary. the facts may eventually shake out to show that some kind of settlement is best, but that situation can only honestly reveal itself if there has been an adversary proceeding from the start.
i guess, in short…civil is one thing, but “kumbaya, can’t we just all get along” is another. i didn’t go into the law to get people to sit around a fire and agree on stuff.
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Joshua Auriemma Reply:
January 23rd, 2009 at 11:17 am
@nicolle, Agreed, wholeheartedly.
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I concur in part and dissent in part.
I think the ADR “revolution” is beneficial in the regard that it adds tools to the savvy litigator’s box. I don’t think a system focused on arbitration and mediation would work though because there are some cases (and some clients) for whom only standard litigation will work (I say litigation rather than advocacy since I don’t like the term advocacy outside the course that bears its name, all attorneys are advocates for their clients, it’s the medium in which they practice that provides useful labels). At the end of the day, I think the skilled lawyer will match up their case with the mode of dispute resolution best suited to its particular context and circumstance.
And anyone who thinks that the whole “fighting thing” is limited to litigation needs to spend some time in actual arbitrations and mediations pronto. They can be just as contentious as litigation and in certain styles of mediation, more so.
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Joshua Auriemma Reply:
January 25th, 2009 at 10:53 pm
@Arthur James Westmore, I think you definitely make some valid points. I don’t really have a problem with staying out of court — in fact, I’m interested in risk avoidance. Staying out of court isn’t a bad thing, but I don’t necessarily like the idea of a blanket preference for ADR within the legal community.
There are certainly plenty of situations where going through the judicial system should be a preferred medium (stare decisis comes to mind).
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