August 28, 2019 Advance Sheet

Discovering Atlantis: Could This Be Litigation’s Best of All Possible Worlds?

Changes to the world of litigation have made it possible for litigators to focus their attention, without distraction, on the highest of all litigation activities: persuasion.

Robert E. Shapiro

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It is frequently said that Plato’s Republic presents a picture of an ideal state, or even an imaginary one, that could never come close to actually existing. Socrates expressly says otherwise. He insists that the regime he is considering—in his articulation, the rule of the philosopher-king—is not only “best” but “possible.” He admits it could come into existence only by chance, if a philosopher somehow happened to become king, or a king a philosopher. And he intimates that the regime is unstable too. Philosophers don’t have time to rule, and kings have no time to philosophize, so that, like Shakespeare’s Prospero, the best ruler can easily be toppled. It is also short-lived, as a comparably talented successor is never assured.

Still, for Plato at least, the “best city” is no mere “utopia,” a Greek word meaning “nowhere.” It can and perhaps will exist from time to time. Its very possibility, however remote, is instructive, showing us what would be necessary for any existing regime to become “best” and allowing us to measure how near or far any particular regime is to that standard.

Few Would Call Our Legal System “Best”

Few among even the most upbeat observers of the American legal system would ever be tempted to deem it perfect or ever say it was “best.” At most it might be said, to paraphrase Winston Churchill, that ours is the worst of all such systems except for all the others, which may be, in that sense, good enough. Socrates anticipates just such a possibility too. If the regime Socrates describes in the Republic is the “best city in speech,” there may still be a “best city in deed,” i.e., the city that has actually conducted itself and functions practically, day-to-day, in the best way. The “best city in deed” is not “best” simply, of course. It does not ever meet a true standard of excellence. This regime knows it has far to go to be “best” in that sense. But it works well, given the practical interferences every city routinely experiences with its aspirations toward the highest standards. According to Plato, this best city in deed was the ancient, not-to-say mythological, city of Atlantis, the deficiencies of which are underscored by its now being submerged somewhere in the vast ocean.

It still seems almost ludicrous to think of the world of contemporary litigation as “best” even in this lesser sense. Too many headaches and unnecessary arguments; too much litigation and not enough trials; document production nightmares galore; and, at least from the client’s standpoint, costs through the roof. Endless work, endless trouble, endless irritation, endless expense. Clients are fed up. Litigators too. Statistics tell us that many litigators are getting out, or want to do so, unable to bear the difficulties, not to say hardships, of contemporary litigation, even if it is striking that there seems to be no shortage of young lawyers coming in. Older lawyers lament that litigation has gotten so much worse since their younger days. Younger litigators want to take the place of their elders, freed from the next morning’s continued review of a mountain of electronically stored information (ESI), always wondering if the supply of such mind-numbing stuff will ever be exhausted (don’t count on it).

Illustration by Dave Klug.

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