A Lawyer Who Eschews Litigation: Another Oxymoron?

The public perception of lawyers, especially trial lawyers, is that of overly zealous (if not frothing) advocates fomenting litigation without any regard for consequences.

As a counterbalance, consider these ruminations of a highly experienced trial lawyer at BeldarBlog: "Yes, there have been times when litigation has been a legitimate tool in advancing important social policies. The paradigmatic example was the civil rights litigation of the 1950s and 1960s. But in general, as a conservative (and despite being a trial lawyer), I'm very leery of trying to accomplish via civil lawsuits what you can't get passed by your state legislature or the Congress. For all their obvious flaws, those entities have tools to make value judgments and policy decisions that trial and appellate courts will always lack. And it's their main job. Because courts, by contrast, are supposed to decide the respective rights of the specific parties before them — albeit with sensitivity to the precedents they're setting that will affect others who are similarly situated — courts not infrequently blow it when they try to set broad social policies. And they're less responsive and accountable to the public than are legislators. ...

"Were a [client] to come to me, as a trial lawyer, asking for representation ... before I ever agreed to pick up my sword for him or her in my role as an advocate-for-hire, I'd first spend some time in my role as counselor-in-private. I'd spend some time talking with my would-be client about flaws and limitations inherent in the lawsuit process. And in particular, I'd stress to my client that courts are particularly, frighteningly efficient tools for stripping away litigants' dignity. It's sometimes for better and sometimes for worse, but in every lawsuit, there's a trained professional whose job is to throw rotten eggs at you, and he also gets to root around in your private affairs to look for more rotten eggs to throw.

"In his [or her] role as counselor, it's a lawyer's duty to not only answer the question of 'Can we win in court?' but to also ask, and get an informed answer, to the question of 'Should we even try?' I can postulate some extreme circumstances when the answer to that question on behalf of a [client] might be 'Yes, we should,' and when I therefore might take on such a client and case." (Hat tip: BeldarBlog.)