Comment on "How to Make a Losing Argument"

The article "How to Make a Losing Argument" offers lessons to be learned for lawyers. But even when these lessons are learned, the advocacy legal system keeps lawyers and their clients at odds. Most often the argument becomes an end in itself, with the people who want resolution left waiting for the fireworks and legal bills to end.

Bombardments with troublesome motions are a normal part of attempting to settle a dispute with litigation. Attorneys are advocates, and they operate in the court of law with a set of complex rules which encourages them to fight (and sometimes fight dirty) on clients’ behalf. When the fight become the main focus, advocacy is wrong. And once a fight starts, no one knows what the outcome will be or how long it will take to get there.

In the advocacy system neither the resolution nor the time of ending is known. The end point will occur either when/if someone comes to a last minute agreement on the courtroom steps just before trial or after a judge makes a decision based on the complex rules which the lawyers and judge must live by. The fight is rarely about the needs of the principals involved. Most often it is about feeding a system that neither benefits nor is understood by the people involved.

Lawyers really do attempt to be reasonable, but once the fight starts in the legal advocacy process, it is hard for one to refrain from retaliating and adding to the pain of the principals. It is all too easy for one lawyer or the other to escalate the pain with a never ending legal battle that can rage for years before resolution is near.

Mediation is a valuable alternative that only cares about the objectives of the principals. The principals use their own sense of what is important to effectively determine the issues and the resolutions.