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Are “warriors” and “warrior types” the ideal litigators?

Law is the framework and ordering program of civilization. Litigation is civilization’s alternative to war and bloody revolution. So long as the door to the courthouse is open, the door to the streets and ramparts can remain closed. War  and bloody revolution can be avoided.

As the Cuban Revolutionary guerrilla Che Gueverra so astutely observed about the United States, violent revolution is possible only when people have lost all hope. As long as procedural due process remains, or at least the belief that procedural due process exists, violent revolution must fail.

Litigation is not a game and the courtroom is not the playground of dandy gentlemen. Litigation is mortal combat and the Courtroom is the arena. The lawyers are the champions. The rules of evidence, the Canons of Ethics and the Code of Professional Conduct with its Disciplinary Rules are the articles of war.

Trial Lawyers—barristers—are not just articulate scholars exercising their wit and erudition before some kind of uninvolved arbiter. Lawyers are champions and the vital interests of their clients, in many cases their very lives, are at stake. In every lawsuit someone must win and someone must lose. In any “case or controversy” the winner and loser might be different in the context of different civilizations at different periods in history; but rest assured, a winner and a loser there will be.

De Tocqueville wrote “if a democracy is to cohere, society’s social problems are necessarily its legal problems; and they are legal problems precisely because they are social problems to which legal processes are both relevant and necessary.”

An attorney is an advocate. Whether in the Courtroom, in the Classroom, in the halls of government or the smoke-filled rooms behind the halls of government; or providing information about their client to the public, any attorney who is not an advocate should not be representing any party in any kind of adversary proceeding or public confrontation no matter how learned they might be about the “Law” and the arcane nature of legal processes.”
Yannacone, “Sue the bastards.” (1969)

The ABA and the Social Scientists view of litigation

Nevertheless, in a widely broadcast email, the American Bar Association touted a webinar entitled, “Are Warriors the Ideal Litigators?” The webinar was sponsored by a great many organizations within the ABA: Center for Professional Development, Center For Professional Responsibility, Section of Family Law, Section of Litigation, Senior Lawyers Division, Solo, Small Firm and General Practice Division, Tort Trial and Insurance Practice Section, Young Lawyers Division.

For the list price of $130, the email claims that trial attorneys will gain a new perspective on the art of persuasion by applying social science research that shows that lawyers’ views of themselves as peacemakers—instead of warriors—will assist them in overcoming their own prejudices and unconscious biases in order to win over the judge, jury, or opposing counsel and reach their clients’ goals.

Without questioning the sincerity and honesty of the researchers who reported that result, there is a serious question about their data. The mixture of target audiences—judge, jury, and opposing counsel–cannot be joined together into a single fungible group of indistinguishable and unidentifiable statistical elements susceptible to mathematical analysis by the statisticians of the social sciences, no matter how sophisticated.

The ABA webinar marketers claim that “unlike soldiers and athletes, [lawyers] neither kill nor have a scoreboard with defined criteria for points on that scoreboard. [Lawyers] persuade. In 98% of the cases, we persuade our opponents to agree to a compromise. In 2% of the cases, we persuade a judge or a jury to agree with our suggested resolution. While scoring and losing points may help or hurt our ability to persuade, the effects of those points on our persuasiveness are not always obvious or consistent.”

Citing as authority the ABA Model Rules of Professional Responsibility the ABA webinar marketers urge us to achieve our clients’ goals through credibility and trust and claim that the “warrior approach” is unlikely to generate the trust from opponents needed to settle 98% of the cases filed and “being the dominant, powerful scoring machine may not be the best prescription for winning fans in the stands (and jury) in the two percent of cases we try.”

Reality often vitiates academic conjecture

It is not an accident of history, however, that the Colt .45 single action revolver came to be known as The Peacemaker throughout the “Wild West” during the mid-and late-Nineteeth Century. Rather, it is a rather colloquial expression of historic truth: Justice and “equal rights under Law” depend upon the exercise of force whether by advocates through argument and negotiation or by individuals vested with the police power of the sovereign people brandishing weapons.

A zealous advocate fiercely dedicated to winning for their client still seems to be the proper way to characterize the perfect litigator.