I made what I hope will be my last appearance in Court on Thursday. After months of tiresome struggle, the judge ruled in favor of my clients. They were relieved, grateful and humble in their victory. No one said “We won!” in that crowing way of high school sports.
Yet I found myself saying “we won” as shorthand in response to people’s question of “How did it go in court?” I did not speak with the bouncy delight I enjoyed when I was a cheerleader and some folks thought it strange that I was drained of energy rather than thrilled. I sadly believe that if the young opposing counsel had prevailed, she would have chalked it up as another victory in her playbook. And I wonder which of my winning tactics of being straightforward, sincere and plainspoken she will emulate in her next encounter before this judge.
I never wanted to become a trial lawyer. I tried my best to avoid court. I worked hard to help my clients steer clear of the kind of polarization that drives people into lawsuits. I am a problem solver and it seemed to me that the biggest problem we face as Americans is the locked-in war mentality promulgated by the news media and the marketing industry. What is so wonderful about victory?
Sometimes I feel defective because I do not love to win. My defect is, perhaps, hormonal. Oxytocin produces the “tend and befriend” response to challenges that also stimulate the “fight or flight” response. Women make more oxytocin, especially during childbirth, and it helps us sustain and endure. Indeed, when my choice is to stand my ground and fight, I often feel it as a settling into a deep foxhole for a long battle while others are scampering around in frenzy.
I just saw the movie The Big Short and, to its credit, it drove home the point that people who gamble with other people’s money should not celebrate when other people’s money is lost, especially when the losers did not even understand that their economic position was in play. Collateral damages radiate in dynamic rings of concentric social circles around the site of every battle that impacts the economy. Even the villain has innocent minions and children.
How do we avoid conflict? We can’t. The leading estate planning attorney in Albuquerque when I was just starting out was John Laflin. Mr. Laflin quite generously offered a seminar every year where he passed out his updated and revised forms for anyone to copy. His trusts were long, complex, impenetrable documents because he drafted new provisions that resolved, in advance, every dispute that he had seen come up between the IRS and taxpayers, between beneficiaries and trustees, between family members of different generations. I chose, instead, to write my own simple 12 page trust document. I figured that the easier way to avoid disputes is to create clear communications accessible to people in language they understand.
A serious flaw in my straight talk conflict-management strategy is that clear communications often point out risks that discourage undertakings. Last Tuesday I attended a legal seminar about forming Limited Liability Companies. There were three presenters: a litigator, a patent attorney and a “transactional attorney” — the guy who writes the formational documents and agreements. The transactional attorney said that he was often despised as the voice of doom and gloom because he is the person who has to anticipate what might go wrong in the business that the potential partners are trying to create. He said he feels okay if he discourages folks from taking risks that they might not have noticed without his help.
I, too, am a transactional attorney. But I am not the voice of doom and gloom. I do not believe that people learn well when they are afraid. I think that smart people anticipate and plan and train for the times when the going gets tough. Lawyers who fear liability for helping with risky ventures bore me.
And yet lawyers who caution against gambling with other people’s lives and livelihoods are a blessing to the world. Perhaps that is the role that corporate lawyers should play daily. Litigation should have never become a game enjoyed for sport or for the ego gratification of the winning players.