The Comforts of Litigation
I am writing an appellate brief. I do this from time to time to keep my hand in the game. I also do it because . . . . . well, it's a heckuva lot easier to make money as a lawyer than it is to make money as a mediator.
Just saying.
Not only that. Litigation is a heckuva lot more comfortable than mediation.
Why?
- I'm right
Alone in my office with Lexis/Nexis, Westlaw, and the cold appellate record I am right about my client's position, its version of the facts, and its read of the law. I've read the other side's arguments and they're . . . wrong, wrong wrong. They mis-state the factual record, cite irrelevant case law, construe the contract contrary to its plain meaning and misapply its provisions under their own recitation of the facts. They elide, evade, fail to answer the hard questions, and mislead the court.
- I'm on the side of truth, justice and the American way
I'm not only right. I'm righteously right. With this brief, I will correct every injustice my client has suffered, justify every humiliation I have suffered at the hands of the trial judge, vindicate myself for all of the times my client has doubted my first [perfectly right and righteous] evaluation of the merits of its case. For this moment, as I sit at my computer alone, I live in a country and work in a system in which compromise is not necessary; loss need never be suffered; my client can be made "whole."
- The chaos of community is orderly and predictable
There is precedent for this messy business problem. The courts have laid out the grid. All I have to do is meet the 3 tests, satisfy the 4 conditions, perch the right facts on each of the 5 prongs, prove the elements of my rectitude. All of my versions of the facts being true, true, true, there is only one right and predictable outcome possible. It is the one I have always said was right. Chaos will be vanquished. Order restored.
- I do not have to suffer loss
Until the last appeal has been made to the highest court in the land, neither I nor my client need suffer loss. We do not need to experience injustice; make an effort to make peace with our neighbors; accept the possibility that our memories are spotty; our analysis subject to criticism; our behavior less than laudatory; our reverses irreversible.
- As long as I am writing this brief, the world conforms to my vision.
As long as I am writing, I am not only potentially victorious, I live in a world of my own choosing, that conforms to my sense of the way things ought to be. The characters in my world are good or evil. There is no middle ground. They are telling the truth or they are lying. They live their lives by right principle or they are scoundrels whose evil deeds will surely be their undoing.
- I am innocent again
As long as this appeal lasts, I am a child again. It is 1962 and I am in the fifth grade. The Lone Ranger will always ride to the rescue. I do not yet have to worry about Tonto's place in the social and economic order of the day. The cattle rustlers will be punished. The hard working ranchers' goods will be returned. Honor will be vindicated. The bandits will be put behind bars or buried in their graves.
A fiery horse with the speed of light, a cloud of dust and a hearty "Hi Ho Silver!" The Lone Ranger. With his faithful Indian companion Tonto, the daring and resourceful masked rider of the plains, led the fight for law and order in the early west. Return with us now to those thrilling days of yesteryear. The Lone Ranger rides again!
Vickie:
Great irony!
Truth be told, there is some truth to what you say.
When I won jury trials, I always told myself that it just proved that winning was more fun than losing. It was only when I noted that my clients, even having won, were not so happy that I began to think there must be a better way to resolve conflict.
Best,
Nancy