BY RAFFI MELKONIAN
The Saturday edition of The New York Times had an interesting article for all of us who plan on actually practicing law. “When Law Firms Collide”, the headline ran, “Things Sometimes Get Ugly.” According to the newspaper, a law firm called Parker & Waichman promised to refer a competitor some fen-phen related personal injury clients in exchange for a piece of the eventual settlement. After the cases filed against the drug maker Wyeth settled, however, the deal went bad – Parker accused their erstwhile partner of favoring the latter’s own direct clients over those referred by Parker, thought they had been paid too little anyway, and proceeded to sue on both theories. The whole unpleasant drama arrived in front of a trial court in Manhattan on Friday, where, as the presiding judge put it, the litigation “start[ed] to sound like an argument in a high school gym.” One side tried to interrupt the other, the other side sulked in response, and instead of trying to reach some kind of resolution even on the most basic matters of discovery, the two sides bothered the judge with so much procedural and administrative detail that he threatened to appoint a referee to deal with them instead. As one expert noted, “When lawyers fight each other, it can become a matter where personal vindication becomes important… those cases can become more vicious than regular divorce cases.” Of course, such pettiness isn’t limited to litigation – as a story about a colorful voicemail exchange between two associates last summer infamously revealed, even lawyers negotiating agreements can be nasty to each other over the phone – and an apology later is hardly likely to fix all the damage.
To some extent, this high level of acrimony is unsurprising. Litigation is the worst case scenario in a disagreement between two parties, short of a duel – as such, it’s bound to be unpleasant. On the other hand, litigation is what lawyers paradigmatically do. While other kinds of businesspeople, lost in the thickets of an unfamiliar and expensive landscape, have a good reason to be unusually angry when sued, lawyers should be able to handle their disagreements with a least a modicum of respect for their fellow professionals. When I was selling Persian rugs in my uncles’ store during college vacations, for example, we often met and discussed prices and conditions with other people in the field – a lot of those meetings were adversarial. Nonetheless, while salesmanship techniques were unabashedly cut-throat with regard to the general consumer, the atmosphere was much more tolerant when it came down to negotiations between insiders. I’ve also heard anecdotally that in our equivalent professions, like medicine and accounting, practitioners typically treat each other in a respectful way as they work. Lawyers, however, seem to have it directly backwards – distinct unpleasantness to even our colleagues, and indifference to everyone else. It’s probably worth wondering why this disparity exists between professions.
Fundamentally, of course, law is an extremely competitive field. Even those of us theoretically interested in “creating value” as transactional attorneys realize that in some cases we’re forced to do nothing but take things from the other guy. Litigators, if driven to trial, want to win. These competitive instincts, if we don’t have them already by the time we begin our training, are drummed into us by the competition for various jobs, titles, partnerships, and everything else lawyers concoct to differentiate themselves from each other. Additionally, however, we shouldn’t discount the education we get at law school as a fundamental cause of this politeness dysfunction. I’m sure others have noticed, but we don’t get a lot of training in civil disagreement here. Rather, the emphasis is on finding problems, inconsistencies, and weaknesses in arguments, regardless of what we actually believe. While I’ve found that savage demand to question all sides useful for a lot of things, it tends to produce obtuse and difficult arguers who delight in the game of disagreeing. The reason the lawyers in the fen-phen case are going at each other so brutally is less about the money, in other words, than about their self esteem as lawyers – you put them on the other side, and they’d argue just as angrily.
I’m not sure I have a solution to all this. But as the law school begins its re-design of the curriculum under Dean Kagan, I’m encouraged by signs that negotiation-based courses, and classes focused around other pedagogical methods are worming their way into the lineup. They’re not going to stop lawyers from being unpleasant to each other, I’m sure. Egos and adrenaline are always going to have their place. But, perhaps, some changes in how we’re trained will make childish outbursts like those I discuss above less common. That would be a great way to improve our reputation in the public, and maybe make practice more pleasant as well.
Raffi Melkonian is a 3L.