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Litigation Journal

Summer 2024

What Lawyers Can Do

Anne Marie Seibel

Summary

  • Litigators are skilled at understanding the importance of language in appealing to decision-makers. 
  • Lawyers can take the skills they’ve honed in their professional lives and deploy them in ways that are outside the legal system itself.
  • This is particularly true when there are forces at work outside our democracy trying to undermine it.
What Lawyers Can Do
Andrea Izzotti-stock.adobe.com

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Democracy is fragile. Our particular form of democracy has been called an experiment. There is no guarantee that it will endure. As Lincoln explained in his Gettysburg Address, we are intended to be a “government of the people, by the people, for the people.” While at the time of his statement, not all people were, in fact, able to participate in the democratic process, individuals used the process to ensure his statement became truer over time. Now all of us who can participate in this government by the people must recognize our individual, participatory roles in our nation’s experiment.

Lawyers have the honor of being people with a particularly important role to play in this process. I’ve written previously about the role lawyers play in demonstrating how to resolve conflict within the rules and systems for litigation. This role is inherent in our training and professional obligations. But lawyers can also take the skills they’ve honed in their professional lives and deploy them in ways that are outside the legal system itself. This is particularly true when there are forces at work outside our democracy trying to undermine it.

For example, in our professional roles, we know not to take “facts” at face value. We require authentication, we cross-examine to confirm validity, and we object when statements are based on hearsay. In our nonprofessional lives, however, we are as apt as anyone else to fall for doctored photos, videos, and memes. In our rushed lives and review of headlines, we jump to conclusions that what we see is promoted by some “other side.” We then amplify the false narratives by spreading them or responding in rash ways. We are learning that very often those messages are spread by fake accounts or bots that are actively seeking to weaken our belief in democracy. They profess not to be on one side or another; instead, they are seeking to inflame all involved in order to heighten emotions. They want us to question the people with whom we share the responsibility of the democratic process and, in turn, question the institutions of democracy. They are succeeding in sowing those seeds of doubt. We, as lawyers, have the skills to pause, examine, and cross-examine what we see and help quiet rhetoric that is intended solely to undermine democracy. It is our job to take the extra step to quash, not amplify, that misinformation.

Litigators are also skilled at understanding the importance of language in appealing to decision-makers. We know how dehumanization of a party to a lawsuit can sway the result. But we understand that when it comes to people, language is a strategy, not a truth. The dehumanization of those with whom we disagree plays into the hands of those who want the experiment of democracy to fail. Lawyers need to call out the use of language that makes it seem that opponents are something less than the people they actually are.

Litigators also know what it means to disagree civilly. I’ve written about this previously this year; however, I feel compelled to do it again as we’ve seen direct threats made against judges, their families, and political opponents. There is never a justification for violence in our democracy. As litigators, we must stand together against threats against judges and their families and be advocates in our communities for the integrity of the judicial system. We must call out language and imagery that glorifies the violence, and we must remind our neighbors to do the same.

I know that litigators believe our institutions are strong. We work within the rule of law, and we counsel our clients on how to avail themselves of those systems effectively and ethically and resolve disputes civilly. I believe that most of the people in our country recognize the strengths of our democracy and the value of its endurance. But I also know some see cracks in our democracy, and are actively trying to undermine it, sometimes using social media and artificial intelligence. At this critical juncture, I urge all litigators to be the people who demonstrate how a government by the people and for the people works and survives.

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