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William C. Altreuter
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Saturday, May 15, 2004

In his review of Professor Thane Rosenbaum's book, "The Myth of Moral Justice: Why Our Legal System fails to do What's Right" Adam Liptak quotes Justice Holmes: "I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms." As usual, the Yankee from Olympus nailed it: the law and justice have two different stands in the marketplace, and are concerned with different things. If you are shopping for apples, you shouldn't complain that the tomatoes you bought aren't crispy enough. It is hard enough for the law to be fair: the whole architecture of our jurisprudence is constructed around the idea of resolving (or preventing) disputes on grounds that are relevant and even handed, balancing one consideration against another. Expecting consistent "justice" on top of that is ignoring what the law actually is, and confusing what the law does sometimes with what it should be doing.

Still, it sounds like Professor Rosenbaum is on to something: "One of the dirty little secrets of the legal system is that if people could simply learn how to apologize, lawyers and judges would be out of business." Not quite, but it is certainly true, in my experience, anyway, that if an aggrieved party is given a forum to make his complaint heard, and afforded an opportunity to have his wounded feelings addressed, the cost of compensating that party for the wrong which has been done to him frequently drops precipitously.

This simple idea is why mediation often works, even when the lawyers for the parties are convinced it will not. It is also why experiments in "court ordered" mediation often don't work as well. Such "mediations"-- like the one I attended yesterday, as a matter of fact, typically involve only the lawyers, meeting with a neutral. Usually the parties are not involved, and therefore do not feel particularly invested in the process, which ends up amounting trying to setting a price on a matter. Ideally the parties themselves should try to work out a compromise that will satisfy themselves, with their lawyers present to make sure that each client's rights are protected. That's what I did the Friday before last, actually, just the two principals, with their lawyers, me and another guy, in a conference room with our clients. As the lawyers worked over the parameters of the dispute, the principals, who had been doing business together for years, worked out the heart of the matter, the way they probably should have in the first place.

There's more than one tool in a good lawyer's belt, and criticisms of the legal system that focus on the litigation process are frequently blind to the reality that there is a good deal more to law than lawsuits and what goes on in the courtroom.

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