“Discourage litigation. Persuade your neighbors to compromise whenever you can.” —Abraham Lincoln
Much has changed about the practice of law since 1850. Social and cultural advancement make for a more diverse and inclusive bar. Technological advancements allow attorneys to better serve a larger number of clients, and economic growth has resulted in fees that would have left attorneys in Lincoln’s time opened-mouthed in amazement. However, today’s bar would do well to return to the values embraced by Lincoln and his associates. Passionate about their profession, they respected fellow members of the bar. And they were expert at helping clients efficiently resolve their disputes.
In his book “Lincoln,” David Herbert Donald describes how the circuit judge and his entourage of lawyers, including the future president, traveled the Illinois circuit. Arriving in a town on Saturday or Sunday, “the next morning the lawyers would be approached by litigants, often with their local counsel, who were glad to have the help of more experienced attorneys from Springfield and Bloomington—the two largest towns on the circuit. Business had to be transacted speedily—declarations and travers drafted, petitions written, lists of witnesses drawn up—so that the judge could hear cases on Monday afternoon.”
After court, the traveling lawyers prepared new cases or “could explore the meager recourses of the little towns they visited.” Mostly attorneys had to amuse themselves and, according to Lincoln’s law partner, William Herndon, they engaged in “fights—foot and horse races—knock downs—wrestling—gambling etc. Whiskey, was abundant and freely used.” After supper the judge and the lawyers might attend some local amusement, such as a circus or a lecture, but if there was no other diversion they sat before the fire and swapped tall tales and anecdotes.
No attorney riding circuit would act unprofessionally or unethically. This wasn’t because they were more ethical than attorneys today; rather, it was due to the intimate nature of the group they traveled with. Friends and colleagues, these men litigated against each other on a daily basis. An attorney who behaved unethically soon found himself looking for another profession.
Lincoln loved the practice of law and encouraged attorneys to adhere to the highest ethical standards. He wrote, “Let no young man, choosing the law for a calling, for a moment yield to this popular belief [that lawyers are necessarily dishonest]. Resolve to be honest at all events; and if, in your own judgment, you can not be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation.”
These attorneys resolved disputes efficiently. The circuit moved quickly from town to town. An attorney met a client on Sunday. Accessed their case and prepared to try or resolve the case on Monday. Given this hectic pace, it’s not surprising that many heeded Lincoln’s sage advice: “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. There will still be business enough.”
Alternative Dispute Resolution applies the lessons of Lincoln’s day. As a young attorney, I listened to a salesman extol the virtues of a new fax machine: “It will cut your workday in half.” Technology promised to make us more efficient and improve our lives. Technology delivered on this promise. Our new fax machine didn’t cut my workday in half, but I was able to communicate more quickly. Few of us would give up our laptops or cellphones.
Although emails and texts increase our ease of communication, they insulate us from each other. The next time you are in a restaurant, observe how many people sit across the table from each other staring at their phones. Texts and emails also make it easier to communicate in a tone that is unproductive, if not unprofessional. It’s harder to be disagreeable sitting across the table from your opponent when you’re speaking face to face.
Attorneys today feel every bit as harried as their brethren in the 1850s. Stress caused by uncomfortable travel, cramped accommodations and speedy trials has been replaced with the sometimes impossible task of balancing a successful law practice with a personal life. Attorneys I know went to law school to make a positive difference in people’s lives, not to be overwhelmed by the frenzied pace of litigation. ADR allows attorneys to return to a time where cases resolved face to face with civility. Attorneys can take a deep breath, focusing on one case in a welcoming environment. By orchestrating a successful resolution, an expert neutral helps attorneys do what they do best—making a positive impact in the lives of their clients
John Miles is the CEO of Miles Mediation & Arbitration. He oversees neutral training and development at Miles.