The role of the lawyer in America has changed over the past 200 years. Before the American Civil War, lawyers generally viewed themselves as peacemakers as well as litigators. This view was shared by the general public as well.
Abraham Lincoln was a shining example of the antebellum lawyer. He favored settling disputes as opposed to needless, time consuming litigation. He was well known for his ability to make peace in the Illinois courts in the 1850’s. He would be better known later for his ability to make war as well.
Lincoln described the lawyer’s role as a peacemaker. In his notes for a law lecture, he wrote: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.” That was a common conception of the lawyer’s role in the nineteenth century.
While lawyers may be viewed differently in modern society, I still view the primary role of the lawyer as a peacemaker. But, what is and is not a peacemaker?
Ronald Reagan said that peace can only be achieved through strength. It is difficult to imagine a more indisputable truth. He would have been one of the greatest lawyers in American history if he had chosen that path.
A peacemaker is not someone who negotiates from a position of weakness. Weakness can manifest itself in many forms. Some include a reputation for unprofessionalism, unethical behavior, or stubborn litigiousness. Other forms of weakness may be a lack of legal knowledge, a lack of knowledge about the facts of a case, a particular judge, or the jury dynamics in the geographic area involving the dispute. Another ominous form of weakness is the fear of trying a case in court. A lawyer who will not try his or her case in the courtroom will never have the respect of the adversary.
Weakness also manifests itself by insisting on fighting every battle. From the beginnings of the Roman Empire to World War II, indiscriminate warfare has always ended up in defeat for the aggressor.
Peace for clients, parties, defendants, plaintiffs, and victims can only be achieved by the strength and courage of the lawyers involved. I have found that when you have strong lawyers on both sides of a dispute, the chances of a peaceful solution are much greater.
When you have strong, professional, and ethical lawyers involved in a case, there is typically a mutual respect for one another. Additionally, both sides have the ability to point out the strengths and weaknesses of the case. Sometimes the facts may be bad for one side, but the law may in that party’s favor. A strong lawyer will assess the situation like a field general. Always ready to negotiate, but also ready to “fix bayonets” if necessary.
My wars are fought on battlefields where criminal law and procedure govern. But, the role of the lawyer as a peacemaker is the same as my colleagues in the civil arena. Opposing attorneys in my cases are almost always seasoned prosecutors. I have found that the best prosecutors have the ability to make peace easier than war.
You may find this surprising, but the job of a prosecutor is not to achieve a conviction in a criminal case. While this often happens, the prosecutor has a much higher ethical responsibility. He or she is a seeker of justice. Justice can mean many things to different people. It can mean seeking a death sentence for a brutal murderer or agreeing to allow a drug addict or alcoholic a chance to save their life by entering a drug court or DUI court. The prosecutor is simply bound to follow his or her conscience in handling criminal cases.
I believe that I have been commissioned to be a peacemaker in my practice. I am lucky to practice in a state that provides so many potential positive resolutions in criminal cases. The more options provided to the lawyers, the better the outcome.
I am also grateful that at an early stage in my career, I was trained by two of the best in this profession to engage in legal combat. However, the most important lesson from those earlier years was to seek the wisdom to know when to make war and when to make peace.