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

The notion that lawyers are in a unique position to restore peace is far from new.  Abraham Lincoln urged lawyers, “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

As practitioners we are called to tap our creativity and compassion to see beyond, around, and within the limited solutions offered by the law.   Peacemaking is more restorative, more involved, and infinitely more work than ending a lawsuit with a dollar figure, or a criminal case with a period of years.

About two years ago, Rachel Monaco-Wilcox took a bold step outside of the traditional estate-planning realm in which she had gained expertise and respect.   She had become increasingly frustrated with “the failure to implement appropriate legal solutions because humanness was being shoved into corners.”  Underlying relational conflict would be ignored, then it would surface; the legal work would be stymied.  She came to a place where she needed, in her words, to find a way to work in the law that was compatible with her gifts, or leave it altogether.  Rachel needed to rekindle the passion that led her to law school in the first place.

This kind of self-examination is, incidentally, foundational to peacemaking.  

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.