Metaphors of War

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.


Ethics and Weddings

I was contacted yesterday afternoon by a local television reporter about La Renaissance, a local banquet hall that is facing foreclosure but has allegedly continued to take deposits from its customers.  Some of these customers have weddings scheduled to take place after the hall is scheduled to be sold at auction.  The auction was supposed to take place a few weeks ago but was postponed due to the blizzard.  

Was it unfair for a banquet hall facing foreclosure to continue to accept deposits from customers?  I was interviewed on camera [here’s a link to the story] and was asked that question.  I am shown saying that it is unfair and deceptive for a business to take deposits from unknowing customers on the eve of foreclosure and that this conduct violates consumer protection laws.  That was a fair representation of my answer to the question, but I did have more to say on the subject than depicted.

As someone who started a small business, I understand the pressures that businesses can face.  The only chance that a struggling business has to survive is to get more customers and to bring in more money.  An ethical business should be concerned with multiple constituencies.  Yes, its customers are important, perhaps even paramount.  But, businesses should also be concerned about employees who depend upon a paycheck. Many of those employees have families, and a business should be concerned about them as well.  A struggling banquet hall probably has creditors that are owed money, and these creditors likely include other small businesses such as food vendors, cleaning companies, and landscapers.  Those companies also have employees with families.  So, there is nothing unethical about a small business struggling to keep things afloat.

But, there comes a point when a rational business owner must acknowledge that the situation is not salvageable.  There is something seriously wrong with continuing to take deposits from customers when there is no reasonable hope that a business can deliver what has been promised.   The situation with La Renaissance is particularly sad, because some of these customers are young couples planning their weddings.  I do not know the details of these transactions, but I fear that the outcome will not be good.

Psychic Fraud

New York police are going to war with “psychic” Sylvia Mitchell. The NY Times reports that Mitchell stole $28,000 from one client and managed to take $120,000 from a second. The second victim also claims that Mitchell convinced her to leave the country.

In their most benevolent form, so-called psychics provide entertainment, and the only harm is the price of admission. All too often, however, vulnerable people are duped into paying high fees in the futile hope of obtaining “spiritual” guidance or contacting departed loved ones. This is when cheap entertainment crosses the line into a con job. The main difference between Sylvia Mitchell’s alleged crimes and what happens every day in storefront medium shops nationwide is that Mitchell had wealthier “clients”.

Perhaps some of these “practitioners” believe the nonsense that they sell, but there are no documented cases of anyone having psychic powers. Anyone who thinks that they can prove otherwise should claim their million dollar prize from James Randi.

The hard question is how to protect vulnerable consumers without unduly restricting people’s right to spend their money on foolishness or restricting their right to believe whatever they wish. It seems that state consumer protection departments could require so-called psychics, mediums, and spiritual advisors to be registered. No, we don’t want to license them, because licensing connotes some level of competence or skill in a recognized trade or profession. Registered psychics could be required to give written disclosures advising clients that there is no scientific evidence that psychics possess supernatural powers and that their services are for entertainment purposes only. The disclosures could also caution against requests for additional payments for more in-depth services or advice. Departments of consumer protection could then receive complaints and refer con artists for prosecution.

Could psychics continue to make a living if they were regulated? How should I know – I don’t have a crystal ball! But, if they could not, that might not be a bad thing for consumers.