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| Marcel Strigberger |
Can lawyers remain detached under the pressures of practice? Stay cool? Not get fazed? Hmmm … Napoleon said something like, “The genius in war is the one who can do the usual thing when those about him grow hysterical with panic and fright.” Sounds good, but unfortunately, most of us are not Napoleon. Alas!
I’m talking about the litigation arena of course. I really doubt the issue of detachment or objectivity is a major one for our corporate commercial colleagues. I don’t see a lawyer doing a house closing waking up in the middle of the night in a cold sweat saying to himself, “And I had better remember to ask for those keys. Phew!”
The word “litigation” of course evokes the concept of a battle. We are thrust into a fight involving either a criminal or civil dispute, with another mortal. We constantly hear words such as “Remain cool; the case is the client’s, not the lawyer’s.” This notion, however, may more readily work for other callings. Physicians, for example, fight a disease or a trauma. They do not fight other physicians. (At least, I hope they don’t. I certainly never saw a doctor lunge at a colleague with a reflex hammer).
There are a number of factors that make it difficult for lawyers to stay objective. One is the possible outcome of a case. I think of capital punishment. While in law school, I aspired to become a criminal lawyer. My greatest fear, however, was losing a murder trial and having my client sentenced to be hung. The sentencing ritual involved the judge donning black gloves before pronouncing the death sentence. I actually had a recurring dream about this situation, whereby my client was found guilty and before sentencing, the judge could not locate his black gloves. He would call a short recess to look for them. I would bite my lip saying to myself, “No Your Honour, don’t find them.” I would wake up and feel relieved knowing it was only a dream, which fortunately ended before the conclusion of the recess.
I actually got called to the bar in the mid-1970s. This was about the time that Canada abolished capital punishment. I did not lie when I told people I never lost a client to the hangman.
Objectivity is fragile at the best of times, and it goes out the window completely when someone tries to represent themselves. Didn’t Lincoln say, “A lawyer who represents himself has a fool for a client?”
I often wonder how Socrates had the fortitude and calmness to represent himself at his trial on charges of corrupting the youth. One would have expected the wise philosopher to retain a lawyer. Then again he likely would have known more about cross-examination than most lawyers, being the go-to guy for Socratic questioning. Only a thought.
It certainly is difficult to stay objective when you have your skin in the game. I once witnessed a small-claims court trial in which a prominent local civil litigation lawyer I’ll call Sullivan was sued for a few hundred dollars by a tradesman I’ll call Rosenberg, whom he refused to pay. In the midst of the tradesman’s testimony in chief, the defendant jumped up and shouted, “Rosenberg, that’s a lie!” The judge admonished the defendant sarcastically saying, “Now, now, Mr. Sullivan, you know the drill. After the plaintiff finishes his testimony, you will have your chance to ask him some questions. It’s called cross-examination.”
I noticed the embarrassed look on Sullivan’s face. He was likely thinking to himself, “What a fool I have for a client.”
Our potential for objectivity is also compromised by fears of getting sued for malpractice. In my four decades of practice, I only got sued once for missing an oddball limitation date. I will say that seeing your name as a defendant in a claim can be rattling. I had visions of attending my nearby post office and finding my portrait there.
Our code of ethics requires us to ably represent our clients vigorously. This can be a problem, especially in family law disputes where too often the lawyer can face threats of violence. I once represented the husband of a woman in an acrimonious divorce action. The couple was of West African origin. She saw me as the husband’s alter ego. At a court encounter, she commented to me that she had special voodoo-type powers that she would unleash on me. I am not superstitious; however, to play it safe, I considered throwing off her attempts to voodoo me by shaving off my moustache. I certainly felt like I had more than skin in the game.
And it is not only the lawyers who can have problems remaining objective. What about the judges?
A client of mine was walking her little dachshund when, suddenly, this huge Rhodesian Ridgeback darted out of his house and charged at my client knocking her to the ground and causing injury. I researched this dog’s breed and during a pretrial motion, I told the judge that Rhodesian Ridgebacks are ferocious dogs used in Africa to attack lions. The judge said, “They’re actually gentle giants. My daughter has one.”
Fortunately, the matter was settled. It was all set to go before a jury. Then again, who knows about all the potential biases jurors might have? They, too, might have daughters with Rhodesian Ridgebacks — or, with luck, dachshunds.
So, can we remain totally detached or objective under the usual pressures of a litigation practice? Napoleon’s comments are indeed inspiring. Then again, things did not work out too well at Waterloo, though presumably, he did the usual thing.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. Visit www.marcelshumour.com. Follow him @MarcelsHumour.
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