"The good people in this world are very far from being satisfied with each other and my arms are the best peacemaker." ~ Samuel Colt (1852)
Many years ago as a young lawyer I attended a CLE presentation by Ward McKeithen (Mecklenburg County Bar President 1993-94) on oral advocacy that was subtitled “Role of Counselor and Peacemaker.” The last of his nine points made a lasting impression on me, as it expressed an idea that at the time was not very prominent in legal circles:
Be a peacemaker and facilitator of resolution—have a bias for peaceful resolution, constructive compromise and a mutually fair and reasonable outcome. Employ the art of persuasion accordingly.
This sentiment sounds almost hackneyed now in an age when mediation is mandatory, civil trials are rare, most criminal cases are resolved by plea agreements and even the notoriously disputatious field of family law has a growing number of “collaborative” practitioners who eschew litigation. Back then, however, the focus was far more on the adversarial as opposed to the conciliatory aspect of lawyering.
For example, for literally decades Mecklenburg County Superior Court has each week typically devoted two courtrooms to civil trials and one to civil motions. There has been no need to increase these judicial resources even though the number of lawyers and case filings have increased exponentially. It used to be that the trial courts were always in session and the fearsome Judge Frank Snepp had the opportunity to excoriate some poor unprepared lawyer at the rate of at least one every half hour. Very often now, however, the civil courts break down because every case on the calendar has been reported settled and the judge in motions court is left with little to do except drink Richard Lockard’s coffee.
So it seems obvious that peace is being made where once the battle would be engaged. It is not as though the public at large has stopped having disputes: it is that those disputes are more often being peaceably resolved without resorting to the zero sum game of trial. The focus of the “litigator” really has become more on being a counselor and peacemaker, rather than a “trial lawyer.”
What does it require to be an effective peacemaker? Ironically, perhaps, it requires someone who knows how to be an effective combatant where necessary. Making peace is not a namby-pamby enterprise. Easy solutions—such as the suggestion by W.C. Fields that the Second World War should be decided by the leaders of the opposing nations fighting it out in the Rose Bowl with sockfuls of dung—rarely are successful. It requires savvy, persistence, empathy, cajoling and usually a veiled threat of calamity should compromise not be reached. And that’s just the first step of counseling peace with one’s own client, let alone dealing with the other side.
Consider this quotation from Richard Nixon: “The greatest honor history can bestow is that of peacemaker.” While most of us would not think of Nixon first and foremost as a peacemaker, also consider that it took an inveterate cold warrior like him to visit what was then called “Red China” and to pursue détente with the Soviet Union. If the wussy liberal Hubert Humphrey had been president and tried something like that, he likely would have been impeached before he could board Air Force One.
The point as applied to lawyers is that every peacemaker has to have some credibility as a courtroom adversary. Whether as a mediator or as an advocate, you have to speak from experience when laying out the consequences of failing to reach a resolution and evaluating negotiating strategy. You also have to have the ability to assure both your client and the other side that, if necessary, you are prepared to try the case as an effective advocate and that counseling compromise is not a sign of weakness. Good lawyers settle cases on good terms because it is known that they know what they are doing: poor lawyers fail to get good settlements for their clients or fail to settle cases that should be settled because they either don’t know any better or because the other side knows that he or she doesn’t know any better and isn’t much of a threat to try the case effectively.
Abraham Lincoln, who before he was president was among the most respected and busy trial lawyers of his time, knew the value of compromise. In notes prepared for a presentation to law students he had this bit of advice:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and wasted time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Lincoln was certainly no slouch in the courtroom, and you can bet that he was able to achieve good results out of the courtroom based on his considerable reputation and ability. Substitute “person” for “man” in that quotation, and it resonates as fully today as it did 160 years ago.
Another one of my favorite movie lines is from the Don Coscarelli cult classic “Bubba Ho-Tep,” when Bruce Campbell as an aging Elvis Presley impersonator (or maybe the real Elvis) residing in a Texas nursing home drops his walker and weakly threatens a soul-sucking Egyptian mummy with “Don’t make me use my stuff on ya, baby!”
. Lincoln would never have had to make such an overt threat—it would be tacitly recognized.
A good compromise is where the parties reach an apparent equilibrium in terms of the evaluation of the case, knowing what the odds are as to the likelihood of a litigated outcome, and taking into account not only the end result, but also the time, trouble and expense of getting there. In order to reach such a resolution, there needs to be the presence of rational counsel, as well as rational clients who are receptive to rational advice and who are able to appreciate both their own position and that of the other side. Such a confluence of factors does not often occur spontaneously, but rather has to be nurtured through the peacemaker. Sometimes that is one or both of the advocates, sometimes a mediator and sometimes the clients themselves. Most litigators have had the experience of the clients ultimately saying the hell with it and settling the case without the participation of counsel. When this happens, it is usually because one or more of the lawyers has failed the client by prolonging the litigation rather than seeking an efficient resolution.
For most cases, it is no longer true that a big firm can necessarily bully a sole practitioner or small firm client into submission by abusive litigation tactics. Courts are more willing to oversee and limit discovery, and technology has leveled the field in terms of access to information. A Westlaw or Lexis account can replace an entire library and even a voluminous case file can be carried on a tiny thumb drive. Document review can be outsourced. Litigation software such as Trial Director can replace a retinue of minions at trial. As a result, a diligent and determined sole practitioner practicing out of his or her basement can often harness the litigation firepower to keep up with most anyone.
Samuel Colt died in 1862, over 10 years before the introduction by the company he founded of the most popular revolver of all time, the Colt Single Action Army, commonly known as the “Peacemaker.” The firearm was never sold or marketed as the Peacemaker, but rather acquired its nickname as a weapon whose effectiveness and low cost (the original military order had a price of $13 per unit) put it within reach of almost everyone.
Calling a gun a “peacemaker” may seem like an oxymoron. It makes sense, however, when one considers that the proposition, though not necessarily an empirically valid one, was that if everyone potentially had a lethal defensive weapon, offensive use of violence should correspondingly be deterred. In that regard, the other nickname of the Single Action Army revolver, the “Equalizer,” was even more apt. (Sorry to sound a bit too Wayne “the only thing that stops a bad guy with a gun is a good guy with a gun” LaPierre-ish here.)
So it is with the internet and information technology. If anyone can have access to technology to make litigation equally hazardous for everyone else, then all parties should be motivated to seek a just compromise; i.e., to make peace.
That’s the theory. But of course, as the proverb teaches, in the real world “there’s many a slip ‘twixt the cup and the lip.” Emotion, greed, unrealistic expectations, ego, personality conflicts: any number of factors can scuttle the settlement process. It takes the steady hand of a peacemaker to help everyone swallow the medicine that will cure the conflict.
On the other hand, sometimes slugging it out with sockfuls of dung might be a more effective ADR technique. Better that than a shootout with matching Colt Peacemakers. Or Wogdon dueling pistols—as may have belatedly occurred to Alexander Hamilton as he lay on his deathbed.