"You're not supposed to bring your personal life into a law firm . . . in fact; you're not supposed to have a personal life."
"I love the law. [E]very now and again, not often, but occasionally, you get to be a part of justice being done. That really is quite a thrill . . . when that happens."
-Andrew Beckett (Tom Hanks), Philadelphia
"I hate this case."
-Belinda Conine (Mary Steenburgen)
After cross-examining Beckett
"How could they do that?"
-Defendant Charles Wheeler (Jason Robards) After jury awards $4.825 million to Beckett
I recently watched the 1993 movie, Philadelphia, again. Tom Hanks plays the role of a rising young star (Andrew Beckett) in a prestigious law firm. He is the favorite of a talented senior partner (Jason Robards as Charles Wheeler). Unbeknownst to Wheeler and others in the firm, Beckett is homosexual and has AIDS. After Wheeler and his partners learn of Beckett's disease, Wheeler fires him on a trumped-up charge of missing a filing deadline.
After being turned down by attorneys who would not take his case, Beckett finds reluctant counsel in Joe Miller (Denzel Washington). Miller helps Beckett uncover the subterfuge hiding the real reasons for his termination, exposing the unsympathetic aspects of the partners' arrogance, prejudice and uncaring response to Beckett's plight. The film casts them as "the bad guys," justifying the huge verdict that occurs later when Beckett, then literally on his deathbed, prevails at trial.
What is fascinating about the film, from the perspective of today's practice of employment law, is that there is never any effort to settle the matter, or even any effort to discuss settlement. (But it's Hollywood, and there's no drama in settlement.) What might have happened in this fictional case if alternatives to trial had been explored? Given that 98 percent of all cases settle in today's litigation environment, can it be argued that the trial should never have occurred? Are there alternatives to litigated solutions that might have ended the case earlier? This article suggests "probably so," and argues that in many cases it is likely to be a lawyer's duty to make sure such alternatives are explored.
In Employment Cases, Feelings Matter A Lot
In any phase of our lives and relationships, feelings matter. When important life issues are at stake, feelings matter a lot. Employment is an important life issue. And we have critical relationships there. Psychological study indicates such loss almost inevitably triggers at least some of the same grieving process associated with death or illness of a loved one, divorce or other severe circumstances causing bereavement. Furthermore, it is now known that the actors on the employer's side of things often suffer, too. A whole science of how to handle the guilt and remorse employers feel when "they let someone go" and the empathy of "survivors" has now emerged.
The resulting deep emotional investment in the case on both sides of the equation is not hard to understand. No wonder feelings run high among the parties, and often among the lawyers, in employment litigation. At the same time, the "heart" or true feelings about the cases are often deeply buried. Litigation is a system designed to get at the "truth of the matter." Unless specifically relevant to identifiable "material issues" like emotional damages or motive, the process of litigation almost always excludes feelings from the "truth of the matter" and the dialogue.
Further complicating the problem is the dual role we are asked to play as lawyers. We are human beings, and despite the view voiced by Andrew Beckett that we are not supposed to have private lives, much less bring them to the office, we do have private lives, including our own feelings, and - inevitably - they do come to the office with us.
So, How Do You (and Others) Feel About Your Case, Counselor?
Litigating an employment lawsuit is a tough job. As lawyers, we operate in a rationalistic system that has emerged over the last thousand or so years. Mind matters most in this system, feelings not so much.
We also operate in an adversarial system. We are supposed to be fighters. In the rationalistic legal system in which we work, where logic and analysis are favored, we are expected to use intellect and cogent argument to convince others of the justness of our cause. We are always selectively choosing what matters to us, and we are always trying, at least in some regard, to exclude what matters to others. This is so because we are asked to create a persuasive story about what occurred that appeals to a third-party decision maker into whose hands we have put the final outcome of a conflict that we (clients and lawyers) could not resolve ourselves.
As one friend recently put this aspect of a lawyer's dilemma, "Most of the time I feel like I live from my neck up." But if we live our case only from the neck up, we miss most of what brings the case to court in the first place. We need to determine what the motivators for the lawsuit are all about. In short, while the legal system is designed to provide the ground rules for warriors expected to "win" the case, it has so far only touched the surface of alternative systems likely to enhance settlement prospects by getting to the "heart" or feelings about what has occurred.
Like Belinda Conine, we might sometimes utter, "I hate this case," because we know there is more to the story than what we are presenting in court. Like Andrew Beckett, we love it when justice is done, but it seems so difficult to get there. And it is difficult because feelings are often left out of the litigation process supposedly designed to see justice done.
Getting to the Heart of the Conflict: Early Investigation and Disclosure
Deciding what we do and do not know about a case, and how we might go about finding out about the parts that are missing, are critical elements in preparing our cases for settlement or trial. How much dare we expose and explore the facts and feelings about a case at its start?
Alerting clients to the risks, time, economic costs, use of non-cash resources, distress and potential loss of dignity, and to the fact things might get much worse before they get better (if at all), should be part of our standard repertoire. Investigating what our client knows (and does not know) about the underlying conflict, and how our client feels about those aspects, is something most of us do, at least in significant part. But what our client knows and feels about how and why conflicts form - and escalate, worsen and reach impasse - and what our client knows and feels about litigation itself, are often overlooked.
We owe it to our clients to be able to explain to them what they are in for, how they got there, and what options they might have, including how best to resolve the dispute, right from the start. And as the facts and relevance of facts to the law unfold, it is good to frequently reevaluate the best way to meet our client's needs, not necessarily just how to win in court.
Early and Continuing Settlement Efforts
One of my mentors once told me, "Every case, and I mean every case, has a settlement value, and the possibility of being settled, at any given moment of time." What he meant is that the benefits and risks of litigation, including the costs, distress, loss of dignity, consumption of time and non-monetary resources, and the desires of a fully advised and educated client, or an educated adversary, may, at any given moment, open a window for resolution. But unless we constantly keep settlement possibilities in mind, assess them, make an offer, or at least open discussions, how will we ever know?
And, as in understanding the dynamics of conflict, how much have we been a student of negotiation? How much do we know about the advancements of understanding that makes effective negotiation work? Are we up to date on what causes impasse, and how to break it? Do we know what causes loss of trust, and how to regain it? Do we know what is considered the appropriate amount of force to use, and when and how to apply that force?
If we are going to be successful negotiators, we should know at least some of the answers and always seek to discover others.
Appropriate Dispute Resolution
Litigation is only one of many ways to resolve disputes. If we look at the available spectrum of options, what among the mix might best help our clients avoid the almost inevitably grinding processes of court?
Further, are we schooled enough to know about the science of alternatives, including mediation? Are we versed on the effect inherent in the psychology of mediation or other conflict resolution options? Have we researched the root causes of conflict and how they might be impacting the conflict we have been asked to handle?
When we go to mediation, do we know which kind of mediation to look for: evaluative help, facilitative help or, perhaps, transformative assistance? Is there some context outside the issues of the litigation that would allow these parties to settle, such as a business deal? Should we suggest to our clients that there might be ways to think outside the litigation box?
How does a plaintiff, how do defendants, really feel about the matter, and what are they saying and not saying about their motivations for continuing the dispute? What non-economic price will our client pay at work, at home, in his or her own heart if the case goes forward? Will there be later feelings of guilt if we encourage a long, drawn out battle over principle, when a little give, in the face of what we know, might resolve the matter?
How might the lawyers and parties have handled the Philadelphia case if the questions above had been considered? In Philadelphia, the parties and attorneys confronted deep-seated fears and prejudices. Their identities were at stake. Their senses of justice were offended. Would it have been possible to resolve some or all of the issues by negotiation, mediation or arbitration? Could some of the conflict have been avoided altogether if time for dialogue early on, or even mid-stream, had been set aside? Could the attorneys have done more to avoid the conflict tried in court?
Given that 98 percent of all cases settle, ought we make it clear that settlement is really the main thing litigation is now all about? I firmly believe that confrontation can be a critical part of negotiation. It can teach an opponent, if consciously and effectively done, the value of discussions. But before we confront, are we sure there is no other option? And once we have, are we willing to reopen, or even initiate, further discussions if that opportunity occurs?
It is my conviction that the definition of being a good employment lawyer, or good lawyer of any sort for that matter, requires us to be well versed in all aspects of conflict resolution, not just what happens in court. This necessarily means, I think, that we are asked to be attorneys with heart, willing to look at motivations and feelings, whether operating in our selves or others, and willing to factor them into the equation about the best ways to get the case resolved.
When we are able to do this, I suspect we will be better versed in practicing law in a way that ensures justice will be done, that ensures we do not end up hating our cases, or wondering as Charles Wheeler did, "How could they do that?"
John Shaffer now "mediates the litigated case." He can be reached at 206-729-0081, email jcslaw1@aol.com. His Web site can be found at creativesettlements.com.
