Scorched Earth and the Elimination of Zealous Advocacy
.jpg)
I've been talking a lot about joint sessions recently, as have mediator-bloggers Chris Annunziata (In Further Praise of the Joint Session); and, Geoff Sharp (The Legal Community has Learned to Accept Low Functioning Mediation).
My most recent post on this issue stressed the need to de-demonize one's opponent in order to free everyone up to creatively participate in a joint session in which defensiveness and posturing are not the orders of the day.
Listen, the parties have already demonized one another by the time they bring their dispute to an attorney. Once the lawyers take over and the parties stop communicating with one another, it's the interaction between the attorneys that exacerbates the already existing sense of distrust and betrayal.
The default rationale for "take no prisoners" and "give no quarter" litigation may have its source in the Professional Rules of Conduct we are all required to follow -- particularly the admonition that we "zealously represent our clients within the bounds of the law." See JAMS commercial mediator Jeff Kichaven's article Zealous Advocacy, Mediation, and the Tangled Pursuit of the "Win."
Now, several states are trying to improve lawyer-to-lawyer relationships by eliminating the term "zealous representation" from their Codes of Conduct and replacing it with terms like "honest," "effective" and "honorable."
My immediate response to changes in language is that they make no difference. Then I remember how changing "Mrs." and "Miss" to "Ms." and taking the "man" out of fire, police and mail, changed career aspirations for generations of women.
So I'll ask my readers. Do you think the removal of the term "zealous advocacy" will have an effect on the practice of law?
For the complete Lawyers USA article on these changes, click here.
