No One Wins in Court

The first thing we do, let’s kill all the lawyers. –Shakespeare, Henry VI*

As someone who spent her career as a lawyer, I’ve heard all the lawyer jokes. Some are actually funny. And while there are lawyers who undeniably give lawyers a bad name, in my career I found most lawyers to be exactly what they should be – healers. That’s right. Healers.

Someone said once that there are three healing professions – medicine heals the body, ministry heals the soul, and law heals society. As a law professor, I had a standard welcome speech for first year students. “Your professional responsibility doesn’t begin when you pass the bar exam. It begins today. The people who will be coming to you for help are depending on your expertise, your integrity, and your effort. Your education up till now has been about you, but beginning today, it isn’t about you anymore. It’s about them.”

Most of the lawyers I encountered during my career had what I considered the right stuff. They served with dedication, compassion, skill, and for the most part, not lots of money, certainly not as much as the general public thinks. I always felt pride in my profession and sober humility with the awareness of my responsibility to my clients, my students, and my society.

One of the classes I taught was a seminar on drafting contracts. Students come into law school full of a lifetime of TV shows about lawyers in court. They think in terms of drafting a contract that will “hold up” in court. Imagine their surprise when I tell them that if their contract ever ends up in court, they’ve already lost. A successful contract is not one that “wins” in court. It’s one that promotes a good relationship between the parties, that allows them to perform willingly and to receive something they value in return. If the parties end up in court, our adversarial system results in a winner and a loser, but both parties have lost the relationship they initially envisioned, not to mention the practical losses in time and money.

The United States is known, justifiably so, as a litigious society. We look to the courts to settle all sorts of disputes, from presidential elections to environmental cleanups to neighbors fighting over fences. All these lawsuits have one thing in common – other modes of resolution have failed. And while it may be true that more often than not, justice is served by the outcome in court, something perhaps more precious has been lost. An adversarial dispute costs us the opportunity we have as individuals, organizations, companies, and governments to find a way to maintain our connection with each other, to have an open hand rather than an upper hand, to find common ground rather than legally superior ground.

Justice is sometimes a sad victor.

Therefore when the Tao is lost, there is goodness.
When goodness is lost, there is kindness.
When kindness is lost, there is justice.
When justice is lost, there is ritual.
Now ritual is the husk of faith and loyalty, the beginning of confusion.
–Tao Te Ching

*This line is often taken out of context and used as a pejorative against lawyers. In fact, the speaker was a follower of an anarchist seeking to overthrow the government and install himself as king. The speaker was not criticizing lawyers. On the contrary, he was observing that any tyrant wannabe would have to eliminate the front line defenders of order and justice, that is, the lawyers, before proceeding with his evil plans.

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