GPSolo Magazine - Oct/Nov 2003

FROM THE EDITOR

A Breakfast of Champions

No one ever talks about Zen and the Art of Litigation. That doesn't mean it doesn't—or couldn't—happen. It could even be a cult waiting for a leader. Just remember that you first read about the concept here in GPSolo.

No other aspect of the practice of law evokes martial arts and other sports images more than litigation. High-octane, testosterone-fueled, saber-wielding gladiators dance a grand pas de deux with their clients in front of a judge and jury in a competition to win money, rights, relationships, and other valuable prizes. Litigators are the action figures, knights, gunslingers, and surgeons of the profession, or so we pretend. We act as if litigators were some rarefied breed of lawyer.

If you were a movie casting director looking for an actor to portray a litigator, would you opt for Ron Howard or Goldie Hawn? I don't think so. Woody Allen might work out as a law professor or even a judge-but never a trial lawyer. We have these expectations of what a litigator is supposed to be—raw, steel-edged, mean, clean, fighting machines like Michael Douglas and Demi Moore. Of course, the ultimate horror would be facing Kathy Bates in a courtroom (with Woody Allen as your lawyer). But all that's Hollywood's version of what litigators should resemble. Real-life litigators look like you and me.

The truth is that all lawyers are litigators—or at least potential litigators. Even the office practitioner who never has set foot in a courtroom and couldn't find the courthouse for love or money is still a litigator. The lawyer whose practice is limited to drafting contracts and deeds of conveyance is a preventive litigator. Errors, misinterpretations, enforcement, evasion, and just plain bad language can force the most desk-bound lawyer into litigation—or at the very least, in search of a paladin. A lawyer who keeps litigation from happening is just as much a litigator as the lawyer who spends every waking hour in a courtroom. How many times have you heard "I'm not a litigator—I only do adoptions." If the adoption lawyer tries a contested adoption case, that lawyer is obviously a litigator. If the same lawyer keeps a case from becoming contested, that lawyer is no less a litigator.

Even alternative dispute resolution and nonlitigation alternatives are but hybrids of litigation. It's simply a dance to different steps, with roots more to the tune of Enya than "On, Wisconsin," but its end goal of reaching accord among the players is the same. Turning the traditional concepts of litigation inside out and into a Möbius strip, it is the tai chi take on litigation.

This issue of GPSolo brings you some of the country's best lawyers and their advice for general, solo, and small firm practitioners who consider themselves litigators, for those who still insist that they're not litigators, and for those whose primary source of continuing legal education can be found at Blockbuster. Retired Army JAG officer Bryan S. Spencer of Round Rock, Texas, took the command post in this issue, and he delivered a winning verdict.

jennifer j. rose, editor-in-chief of GPSolo, is a lawyer and writer living in Morelia, Michoacán, Mexico. She can be reached at jenniferrose@abanet.org.

 

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