Sam Ervin was just a small-town lawyer who one day arose to be the senior senator from North Carolina and the man who chaired the Nixon Watergate investigation. Well known for his rumpled aw-shucks country mien which he used to cover a first-rate mind, he was fond of using bucolic humor to make a point with a laugh. He told the story of the hillbilly constituent who bought some moonshine liquor and gave a portion to a friend. Sometime thereafter the constituent asked his friend what he thought of the liquor. “Well, it was just right,” said the friend.
“What do you mean, ‘just right’?” the benefactor asked.
“I mean that if it had been any better, you wouldn’t have given it to me,” the friend replied. “And if it had been any worse, I couldn’t have drunk it.”
Then there was a young lawyer who showed up at a revival meeting and was asked to deliver a prayer. Unprepared, he gave a prayer straight from his lawyer’s heart: “Stir up much strife, rancor, distrust, and hatred amongst thy people, Lord,” he prayed, “lest thy servant perish.”
Unfamiliar as I am with the former, there’s more than a kernel of truth in the last. You’ve read many times before in this space about the expense of litigation. At this writing, we are poised for a five to seven week trial, which may or may not be over when you read this, concerning the Grace and St. Stephens Church. Some of you, I know, are to be participants in this trial.
While I, too, am a participant of sorts, I don’t think it presumptuous to observe that the entire situation must sadden even the flintiest of hearts. Good people, well-meaning people, simply cannot agree on a matter of great importance, and look to the courts ultimately for vindication, and more improbably, justice. I’ve no way of knowing if either side, when the dust settles, will achieve either. The one thing I can predict with absolute confidence is that the lawyers in the case, win or lose, will do just fine. That’s often the case in court.
Sometimes, particularly where there are two widely divergent objectives among the litigants which do not lend themselves to a middle-ground (what I call a binary dispute), a lawsuit is really the only choice. Other times, though, there is room for compromise, negotiation, a little old-fashioned horse trading and yes, even reconciliation. In such cases it is possible to achieve a win-win resolution where all parties, while perhaps not fully “vindicated,” can achieve a measure of satisfaction in having achieved a resolution of the problem short of full-tilt-boogie litigation.
I sometimes ask clients who want to engage in a will contest in probate court, or who wish to put punitive sanctions in their last will and testament, how much they like me. “Do you love me like a son?” Puzzled, most will admit that, well, actually no, no they don’t. I then tell them that the good news is that the estate almost undoubtedly will be divided 50-50. Relieved, they ask me how I’ll be able to do that. “Easy, I get half, and the other side’s lawyer will get half.”
My hope in using this too-cynical parable is to help people understand the enormous cost, not just monetary, but emotional and spiritual, of going to court. And it’s also to help folks consider that working through alternative dispute resolution (ADR), or through various peace-making mechanisms, can often result in a healthy outcome with a minimum of collateral damage to the family. (Full disclosure: I am working through my church to become part of a Peacemaking Team, with the idea of helping disputants work things out without coming to blows or to court.)
To succeed in informal or alternate dispute resolution requires just four ingredients. First, the disputants must share common value system or objective relevant to the nature of the disagreement. Core beliefs in family, sharing, faith, or maybe just ensuring the interests of the children, are a great beginning. Second, the disagreement cannot have devolved irretrievably into hatred. Once the original object of the dispute becomes subordinate to the thirst for vengeance, never mind that bringing down the opponent might mean self-destruction, there is little hope for amicable resolution. In such cases, litigation holds great promise if the goal is mutual assured destruction. Third, there has to be agreement that there is a possibility of compromise, and that getting something less than everything is acceptable. And finally, there has to be a willingness to come to an agreement without having it imposed. When we’re talking about money, parenting time, or even a disagreement over botched repairs, there’s nearly always a middle ground where reasonable people can reach an accommodation.
Justice is seldom if ever, completely found in a verdict. Joseph Heller’s darkly forbidding “bloated colonel” in Catch-22 had his own view of justice. “Justice” he told Lt. Clevinger, “is a knee in the gut from the floor on the chin at night sneaky with a knife brought up down on the magazine of a battleship sandbagged underhanded in the dark without a word of warning. Garroting. That’s what justice is.”
Doesn’t sound like a worthy objective does it? True justice is always elusive, but acting justly is something to which we should all can and should aspire. Sometimes it can be done without lawyers.