I just returned from the National Consumer Law Center’s Annual Consumer Right’s Litigation Conference. I am the managing attorney of a small consumer protection law firm, and this conference gives me an opportunity to compare notes and share ideas with other consumer advocates from around the country. Every year, I return with fresh ideas and a new enthusiasm for my work. Like most of my colleagues, I went into this area of law practice so that I could help injured consumers who have been aggrieved by improper business practices. The conference serves as an annual reinforcement of our mission to fight for economic justice.
This year’s conference did not disappoint. The speakers, which included three United States Senators, were inspiring, witty, and informative. The programs were well presented and designed. I even presented my own talk on the Ethical Implications of Limitations on Human Memory and Perception, which the attendees all swear was much more interesting than it sounds! Perhaps I will present it as part of our firm’s new Webinar Series. By all accounts, it was a great conference.
Yet, this year, I became quite aware that my perspective of civil litigation differed from the perspective of most of the speakers. When they speak of their work, they use metaphors of war. Litigation is a war. Depositions are battles. Car dealers, debt collectors, and their attorneys are enemies who must be destroyed.
At our firm, when we handle a case, we don’t think of ourselves as combatants in a war. We are view ourselves as problem solvers. Our objective in advising a client and planning a litigation strategy is to obtain the best result. Sometimes, that result means taking a calculated risk in going to trial. Other times, it means maneuvering the case in such a way to get the best possible settlement. Other times, it means minimizing the clients’ risk and obtaining a swift resolution. So, we use different metaphors. We strategize our moves, we work with opposing counsel, we solve dilemmas, we build a case by putting together disparate pieces. For us, fixing a client’s problem is like playing a “game” or solving a “puzzle.”
In their classic Metaphors We Live By, George Lakoff and Mark Johnson explain that the metaphors we use can shape our experience and impact our outlook. If we view litigation as a war, then we are more likely to perceive actions by the other side as an “attack,” and we are more likely to “retaliate” or plan a “first strike”. Such attitudes only increase acrimony and make resolution more difficult. Resolution is more easily obtained when attorneys view disputes as problems to be solved.
I suppose that others will perceive my rejection of war metaphors as an indication that I am “weak” and unwilling to “fight.” What they fail to realize is that I am not waging a war. I am playing a game of wits. Fans of George R.R. Martin will know that, when playing such a game, it is better to be “smart” than to be “strong.”
I believe that such an approach is preferred by consumers who seek a lawyer because they have been injured and want to be made whole. They don’t want a fight; they want their problem to be solved. Sure, it is sometimes necessary for disputes to be decided by a trial. We are not afraid of that – we love playing games and solving puzzles! Deciding whether and how to proceed to a trial requires craftiness, creativity, intelligence, and reason. Testosterone is not particularly helpful in that setting. This is a game where wise attorneys will set aside their bellicosity.
Metaphors of war do a disservice to our civil justice system, which requires attorneys to act as professional officers of the court. Such metaphors do an even greater disservice to those who have fought in real wars. Violating consumer protection laws is serious business, but lawyers who “combat” these violations risk virtually nothing compared to our servicemen and servicewomen who risk everything. Combat is the most serious business of all, and metaphors of war have no place in civil settings.
Happy Veterans Day to those who have known the real thing.