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Scrapping

By on Oct 11, 2013 | 2 comments

The American court system is described as an “adversarial” system. That means our system relies on two sides zealously throwing their weight around until the winning side arises from the wreckage.

This system has pros and cons. The obvious pro is that when both sides come ready for war, the issue becomes fully litigated. We thus have more faith in the outcome.

The obvious con is that, where there are winners there are also losers. The adversarial system inherently means one side loses. Which is fine if you’re on the winning side but, well, you know.

The natural solution to the winner-takes-all approach is compromise. Plea bargains and settlements are both mechanisms lawyers use to control the outcome of a case. Someone sues someone else, or someone is charged with a crime. Then the lawyers get together to hash out a mutually agreeable resolution, détente, case closed.

I like compromise and I like assured outcomes. I like being able to tell a client “You’re doing to do X, and in 12 months the charge will be automatically dismissed. No need to throw your fate to a jury.” Clients generally seem to appreciate it too.

All that being said, I enjoy a good scrap too. I was reminded of that this week. I drafted a motion to get some relatively confidential records, which is rare but not particularly unusual. It looked like the other side wasn’t going to raise too much of a fuss about it.

But then one party got an expensive lawyer, and the Attorney General got involved, and lots of paper was thrown back and forth. The argument for these records is this afternoon.

Was I happy all these other people got involved in this? I mean, for the client’s sake it would have been great if the motion was granted unopposed. But…it’s more fun the other way.

There’s no compromise on this one. Everyone’s getting together and we’re going to have an (intellectually speaking) bare-knuckle brawl over these records. As I’m sitting here right now, I’m very much looking forward to it.

Having spoken to colleagues over the years I feel this trait, a sense of anticipation over a big motion or a big trial, part and parcel with the work we do. Sometimes negotiations break down. We have to be ready to go to war at a moment’s notice. For people in my line of work, that moment is an exciting one.

All this to say: I really like my job.

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  • Kenyon Colloran

    Based on my experience it’s really important to like it. My father who quit lawyering for teaching was relatively good at scrapping, but hated it, which is why he quit.

    • Noah_Weil

      Sounds wise to me. If someone in this line of work starts hating their job, it’s probably time to look for a new one.

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