George Santayana said that those who cannot remember the past are condemned to repeat it. In the business of resolving legal disputes, we encounter parties who remember the past all too well. Each side might remember the past in a somewhat different way, but both sides can give a detailed recitation of every event in the past that created the dispute.
Yet they repeat it anyway.
What I have observed during a long time spent guiding clients through the progress of lawsuits, are the opportunities that lawsuits provide for parties to repeat exactly the same behaviors that created the original conflict. Before they filed suit, parties might have a dispute about performance of a contract, or some claimed wrongful action one or both took against the other. The bitterness and distrust engendered by their original grievances are likely to give the parties a chance to find new ones. The party who complains about his adversaries’ failure to perform a contract is also likely to fault their woefully inadequate responses to interrogatories. The party who feels wronged by her opponents’ insulting behavior before the lawsuit might be even more offended by the outrageous exaggerations contained in their motion papers. Not only does litigation afford parties a chance to obsess over their original claims, it allows them to create new ones. After some time in litigation, parties can not only recite the sequence of events that brought them to court, they can also list a whole new series of wrongs that occurred during pre-trial proceedings. And they want to pay the perpetrators back in kind. Thus the story of the lawsuit itself comes to resemble the story that brought the parties to court in the first place, because these same personalities can’t help acting the way they did before.
We might therefore turn to Karl Marx for a more apt quotation to describe litigation: “All great historical facts and personages occur twice: the first time as tragedy, the second time as farce.” Not all lawsuits end up as farces. Some allow for a cathartic expungement of the original conflict. But many lawsuits degenerate into farce, because they encourage parties who thought they were fighting about something important to fight instead about increasingly petty problems encountered in the course of litigation. It is strange that we think the best way to resolve a conflict is to create even more conflict, until the judge puts an end to it, or the parties get tired of fighting.
Imagine if our justice system could provide parties a real chance to escape from the vicious cycle of conflict, or to consider what mistakes they might have made that helped create the original dispute. Litigants aren’t usually eager to conclude that they had anything to do with causing the conflict, however. They are instead likely to blame the judge, or their attorney, or their lying adversary, if things don’t go well for them in court. And frequently, they have a point.
As an advocate, I enjoy a good argument over some inconsequential procedural issue as much as the next attorney. But I have an obligation to consider whether the resolution of such an argument is going to do my client any good, especially considering the costs and risks involved in making it. Years of experience have made me more likely to try to avoid fighting over non-substantive issues. I’m also interested in finding simplified procedures to reduce the tendency of litigation to exacerbate rather than resolve conflict. As a mediator, I have even more chance to reduce conflict, by trying to find areas of common interest, instead of looking for new sources of conflict.
(photo from Outlook India)