"The entire legal profession - lawyers, judges, law teachers - has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers - healers of conflicts."
Chief Justice Earl Warren
"For of all sad words of tongue or pen, The saddest are these: 'It might have been.'"
John Greenleaf Whittier
I love a good story. Stories open doors to forms of truth not available through more expositional communications. Stories use word mixtures that transport us down paths of understanding that are not only mental in nature. Stories can be heartfelt, touch our souls and move our spirits. Good stories have the capacity to stay with us like good friends. We can revisit them from time to time in celebration or when we otherwise might feel the need to reconnect with wisdom we had encountered before.
One really good story that has affected me was told by Harper Lee in her book To Kill a Mockingbird. This story is told to us by a 6-year-old girl named Scout, the daughter of Atticus Finch. Atticus is a talented lawyer and single parent raising Scout and her brother, Jem, in the small, Depression-era town of Maycomb, Alabama.
Scout is a precocious, joy-filled child, innocently wise beyond her years. She runs at kind of a wide-open speed, bumping from one life experience to another, but reflecting through Lee's thoughts and words a deep understanding, compassion and respect for human nature.
Atticus is an upright, thoughtful and justice-seeking lawyer. He also is a caring and nurturing father. In many ways, Atticus is like a small-town country doctor professing a way of life that would do honor to all lawyers, as we would if we were to incorporate more of what Atticus represents in our own everyday lives and practices.
"Professing," by the way, comes from the same word root as "profession." A profession, besides being a form of career, is a statement of principle, faith, way of life or, even, religious belief. Lawyers are "professionals," and it is my sense society truly wants to see us standing for a set of principles the way Atticus does. When, as a profession, we let our fellow citizens down, it is no wonder we are seen as violating a trust bestowed on us when we are licensed to practice law.
Gregory Peck won an Oscar for his portrayal in the 1962 film version of To Kill a Mockingbird. The book, I think, might well be required reading for every lawyer, and the movie should be seen for a wonderful portrayal of what it might truly mean to be a "civil" lawyer.
There is a wonderful theme (among many others) in To Kill a Mockingbird having to do with Atticus's defense of Tom, a black man wrongfully accused of raping a white woman. Atticus is reluctant at first, but accepts the court-assigned representation. He understands he is an officer of the court, and that the judge has probably chosen him for reasons having to do with the nature of his character that will help him face the difficult task of defending a black man in the 1930s South.
Many things could be said about Atticus's role as Tom's lawyer, but I want to focus on one particular scene involving Scout. Following Tom's arrest, racial intolerance, outrage and violence are stirred in the white community. Atticus accurately anticipates that a lynch mob is apt to form while Tom is being held in the local jail. Here, human nature at its darkest is contrasted with the civility and principled action Atticus stands for.
The night the crowd forms, Atticus positions himself on the jail's front porch and waits for the mob to appear. His courageous action is required by his "profession" of principles. Atticus speaks to the crowd when it arrives, but it is Scout who innocently finds a way to defuse the mob mentality.
When she arrives, Scout recognizes one of the mob's members as someone her father had recently helped with an entailment (limiting of inherited rights). She addresses him in an unsuspecting and innocent way: "Hey, Mr. Cunningham. How's your entailment getting along? . . . Don't you remember me, Mr. Cunningham?"
She personalizes his presence, Atticus's role in the community and an obligation he (and others) owe for Atticus's help. Her effort to remind him of who she is - and who he is - in fact reminds everyone of their interconnectedness and the fact they will all see one another again after the night's events are over.
Scout's statement to Cunningham, "I go to school with your boy. I go to school with Walter. He's a nice boy. Tell him Ôhey' for me, won't you?" finishes the shaming of these men who have come to do harm, and disarms their hatred and mob mentality. Slowly, but surely, the men remember their own humanity and recollect that justice is something to be administered by the court and, perhaps more importantly, that they will have to live with their actions in the light of day.
Sadly enough, for the drama of the overall story to work, "justice" as seen by a southern jury in those days is done by a faulty conviction of an innocent man. But that part of the story and the scene in front of the jail remind us to think about justice and what principles we stand for and represent to our friends and neighbors.
Just as important for the subject of civility and the law discussed here, the story in To Kill a Mockingbird forces us to also consider other parts of the profession of being a lawyer often missing from our legal thoughts and actions: a remembrance of the importance of right behavior, the need for understanding and the importance of compassion for others in response to the trust we hold that has been granted to us by the members of our greater community.
In the heat of battle, our zeal sometimes pushes us over the edge of a principled "profession" into behavior somewhat like that of the lynch mob. We lose respect for others, attributing motive and evilness of character to them, forcing us to focus on the people and not the problem at hand. We can find ourselves sometimes justifying our own "bad" behavior by the presumed or actual bad conduct of others, forgetting we hold authority and responsibilities as officers of the court.
More importantly, we can forget the more basic parts of our own human nature having to do with true civility and professionalism. We can lose our capacity to ask questions designed to find out what really happened rather than to make a case. And we can lose our capacity to listen to and understand others, and feel the compassion that arises when we have another chance to remember that "there but for the grace of God go I."
Trite as it seems, "walking a mile in someone else's moccasins" by listening to them empathetically, trying to understand why they have done what they did, and trying also to heal, as well as seek redress for, whatever wrong has occurred, might well be the next step of principled action our careers call for, and an important part of what we ought to profess as lawyers.
A failure to do so seems to be a big part of the public attitude that denigrates us as professionals and makes jokes of our careers. Until we more consistently manifest behavior like that of Atticus and Scout, even in the heat of battle, lawyer jokes will rightfully continue. While there is no guarantee these jokes will stop if we do strive to profess and act upon such characteristics, we will be seen more frequently to deserve the public trust placed in us, which allows us to practice law.
Adding understanding, respect and compassion to our practices brings a new kind of civility to our careers as lawyers - a civility based not on mere polite conduct, but one which reaches much deeper and reflects some of the virtues manifested by Atticus Finch and his daughter Scout. Such civility allows us to be "healers of conflict," as we are reminded by Chief Justice Burger, and will help us fulfill some of the aspirations that brought us to the law in the first place and avoid John Greenleaf Whittier's lament: "It might have been."
John Shaffer serves as a mediator, arbitrator, teacher and discussion facilitator, having helped individuals, couples, corporations, community organizations and local governments solve complex conflict problems for more than 30 years. He can be reached at jcslaw1@aol.com or 206-729-0081.
