Can lawyers detach?
Can lawyers remain detached under the pressures of practice? Stay cool? Do our work without getting fazed? I’m not so sure.
Napoleon said something like, “The genius in war is the one who can do the usual thing when those about him grow hysterical with panic and fright.” Sounds good, but unfortunately, most of us are not Napoleon. Alas!
My comments that follow will of course focus on the litigation arena. I really doubt that the issue of detachment or objectivity is a major one of relevance for our corporate commercial colleagues. I don’t see a lawyer doing a house purchase closing waking up in the middle of the night in a cold sweat saying to himself, “And I had better remember to ask for those keys. Phew!”
The word litigation of course evokes the concept of a battle, an argument, a dispute. We are thrust into a fight involving either a criminal or a civil dispute. We have all heard over and over again words such as “remain objective; the case is the client’s, not the lawyer’s.” This notion, however, may more readily work for other callings. Physicians, for example, fight a disease or a trauma. They do not fight other physicians. At least I hope they don’t.
There are a number of factors that make it difficult for lawyers to keep objective. One is the possible outcome of a case. I think of capital punishment. While in law school, I had aspirations of doing criminal defense work after I completed my studies. My greatest fear, however, was losing a murder trial and having my client getting sentenced to be hung, the method of execution in Canada in those days.
The sentencing ritual involved the judge donning black gloves before pronouncing the death sentence. I actually had a recurring dream about this situation, whereby my client was found guilty, and before sentencing, the judge could not locate his black gloves. He would call a short recess to look for them. I would bite my lips saying to myself, “No, your honor, don’t find them.” I would wake up and feel relieved, telling myself it was only a dream, which fortunately ended before the conclusion of the recess.
I actually got called to the bar of the province of Ontario in the mid-1970s. This was about the time that Canada abolished capital punishment. I did not lie when I would tell people I never lost a client to the hangman.
Objectivity is fragile at the best of times, and it goes out the window completely, I would say, if someone tries to represent themselves in a legal dispute. Didn’t Lincoln say, “A lawyer who represents himself has a fool for a client?” I often wonder how Socrates had the fortitude and calmness to represent himself at his trial on charges of corrupting the youth. One would have expected the wise philosopher to retain a lawyer. Then again, he likely would have known more about cross-examination than most lawyers, being the go-to guy for Socratic questioning. Only a thought.
It certainly is difficult to stay objective when you have your skin in the game. I once witnessed a small claims court trial, where a prominent local civil litigation lawyer I’ll call Sullivan was sued for a few hundred dollars by a tradesman I’ll call Rosenberg, whom he refused to pay.
In the midst of the tradesman’s testimony in chief, the defendant jumped up and shouted “Rosenberg, that’s a lie.” The judge admonished the defendant sarcastically saying, “Now, now, Mr. Sullivan, you know the drill. After the plaintiff finishes his testimony, you will have your chance to ask him some questions. It’s called cross-examination.”
I noticed the embarrassed look on Sullivan’s face. He was likely thinking to himself, “What a fool I have for a client.”
Aside from fear of the outcome of a case, the potential of objectivity is compromised by fears of getting sued for malpractice. In my four decades of practice, I only got sued once for allegedly not issuing a personal injury claim in time after the proclamation of a confusing legislative amendment that created uncertainty for the personal injury bar. To see your name as a defendant in a lawsuit can be rattling. I had visions of attending my nearby post office and seeing my portrait there.
Our code of ethics requires us to ably represent our clients vigorously. This can be a problem, especially in family law disputes, where too often the lawyer can face threats of violence. I once represented the husband of a woman in an acrimonious divorce action. She saw me as the husband’s alter ego. At a court encounter, she commented to me that she had special voodoo-type powers, which she would unleash on me. I am not superstitious, however. To play it safe, I considered throwing off her attempts to voodoo me by shaving off my mustache. I certainly felt like I had more than skin in the game.
And it is not only the lawyers who can have problems remaining objective. What about the judges?
A client of mine was walking her little dachshund when suddenly this huge Rhodesian ridgeback darted out of his house and charged at my client, knocking her to the ground and causing injury. I researched this dog’s breed, and during a pretrial motion, I told the judge that Rhodesian ridgebacks are ferocious dogs used in Africa to attack lions. The judge said, “They’re actually gentle giants. My daughter has one.”
Fortunately, the matter was settled. It was all set to go before a jury. Then again, who knows about all the potential biases that jurors might have? They too might have daughters with Rhodesian ridgebacks—or, with luck, dachshunds.
So can we remain totally detached or objective under the usual pressures of a litigation practice? Napoleon’s comments are indeed inspiring. Then again, things did not work out too well at Waterloo, though presumably he did the usual thing.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on X, formerly known as Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
