It’s time for another in our semi-regular series of questions posed to Marquette Law faculty: What’s your favorite legal quotation? I’ll go first. There are a number of quotations that I could choose from, from cases (“The common law is not a brooding omnipresence in the sky”), apocryphal anecdotes (“Your honor, ten dollars wouldn’t pay for half the contempt I have for this court!”), or law review articles (“There are two things wrong with almost all legal writing. One is its style. The other is its content.”).

But my favorite, the one I quote more often than any other to students, clients, and anyone else who will listen, is not attributable so far as I know to any particular source. I heard it first from a partner I worked for, but I have since run across it in multiple other venues. It’s about litigation in court, and it goes something like this:

The most rock-solid, knock-down, absolutely sure-fire legal argument you can imagine has about an 85% chance of success.

I like this quotation because it pithily illustrates the dangers of over-confidence in litigation. There are at least two ways an assessment of one’s chances of success can go wrong.

Note: This is the third installment in a four-part series of blog posts; you’ll find part one here, and part two here.

Popular media most frequently depict lawyers in an advocate role.   Specifically, the media shows a lawyer parading in front of a jury, pounding on a lectern and giving a grand oratory performance.  These, incidentally, are things that appealed to me about being a lawyer.   I like theater, and I like competition.

I started my law firm clerkship with a bang with all the theatre and gamesmanship I could have wanted.   In the summer of 1999, I participated daily in a six-week jury trial that led to a $100 million verdict.  We were thrilled because the jury assigned no liability to our client, a third-party defendant.   The plaintiff, of course, was ecstatic.  I found the experience thrilling.  More so, because I hadn’t been part of the three years leading up to that six weeks.  And I didn’t play much of a role in the years of appellate proceedings that followed.  The pace of litigation takes years to learn, and a good while longer to figure out how to explain to a client.

But even at that nubile stage I could see that a trial “victory” comes at great expense.   The plaintiff-municipality had incurred enormous costs, not the least of which was diversion from present endeavors, that redressing the past requires.   And our client, while clearly a winner at trial, had incurred heavy costs as well.    The longer I practiced the more I learned that most civil cases boast no definitive victor.  More than 90% of cases settle before trial, typically requiring compromise on all sides.   Because of all the incentives to resolution, the rare case that doesn’t settle often has circumstances suggesting blame cannot be assigned so neatly.

When I landed in law school, I had little understanding of what it meant to be a lawyer.    By graduation day, I had a couple ideas.   Ten years later, I have a few more.   One idea that I had long before I ever entered Sensenbrenner Hall, proved overwhelmingly right.   It is simply this: that being a lawyer requires “something more” than showing up for work each day, figuring out what the law is, and regurgitating it in a courtroom or contract.   What that “something more” is, has taken me a long time to discover, and I’m still learning.

 When I began practicing, I wholeheartedly took up the generally frenetic pace of this American life, and the new lawyer’s life in particular.    Those who have done it will surely agree that, while years in which one bills upwards of 2000 hours are fruitful in some respects, they leave little room for growth in other essential aspects of being human.   Bustling with busy-ness and a desire to serve the community, I also did lots of pro bono work and volunteering with the bar.  This allowed me to collect a wide variety of experiences in the law and on its fringes.  A day of depositions defending a multi-million dollar corporation, might precede a meeting with a homeless shelter director to strategize about meeting legal needs of its individual residents.   Thus in 2007, when I switched up my career path to teach  justice in an undergraduate setting, I had much to reflect on, some time for it, and perhaps most importantly, a realization of the value in doing so.  

I now recognize, praise and honor the lawyer’s unique opportunity to be a force for greater good, in our paid work, our pro bono work, and other moments in which we assert our professional identity.   In my writings to you this month, I will highlight three roles that lawyers commonly assume:  we are by turns counselors, advocates, and peacemakers.  I will share with you a story to illustrate the power each of us has to express that role to its fullest, what I call, “The Power of One.”   In the course of these writings, I will share with you more of my own personal journey, and invite you to deliberate about your own path.