On the Nature of our Work: Hurting people.

One of the things that people like to claim not to understand is how certain people commit certain acts in the course of their work, historically.

Now, it's not put that way, but let me note some example.

And let me make them the extreme ones.

How did German soldiers commit horrible atrocities.  Not the SS, which was full of hate indoctrinated fanatics, but regular German conscripts. How did they do that?

For that matter, how did American soldiers of the Frontier Era occasionally go to far?

We always comfort ourselves that we, benighted moderns that we are, never do such horrible things.

And of course, we don't.  Not like I've noted here.  Or at least its highly unlikely that we will.  None of us or going to be conscripted anymore, and we're certainly not going to be conscripted into the the 1939-1945 Heer.

Nor are we going to end up in a 19th Century Indian/European conflict of any kind.

And hence we're usually able to comfort ourselves that we would not do such horrible things, and if we were there at the time, we wouldn't.  We, we imagine, would have been the Soldat that said "Nein!"

You hypocrite! First remove the beam out of your own eye,

and then you can see clearly to remove the speck out of your brother’s eye.

Maybe we ought to reconsider that.

Now, let me be frank, this sort of analysis doesn't apply equally to everyone all the time, and I don't intend i to to.

Which is why I'm turning directly to what I do on a daily basis.  Practice law.

Allow me to first make a disclaimer, however.  I'm not pointing the fingers at anyone in particular.  Nor do I even have a singular example in mind.  So, I'm not saying "this lawyer does this or that bad thing"  No, I am not.

But what I am noting is that as a profession we get amazingly acclimated to hurting people.

Now, much of that is completely unavoidable.  But much of it is avoidable.

I'm constantly reading about lawsuit that are pretty dicey brought here and there around the county (and again, I"m not pointing to any particular example in my own state, where things aren't as bad, which doesn't mean we escape these either.

Detective Lt. Joseph Petrosiino, Inspector Carey and Inspector McCafferty escorting Mafia hitman Tomasso Petto, "Petto the Ox".  He's the second from the left.  I'm sure that if his employers were asked, and like if he had been, his answer about his work would have been, "It's nothing personal, only business".     

As lawyers, we forget, and indeed become acclimated, to the concept that the law is an adversarial system.  We convince ourselves, with little real room to believe it, that this serves a societal interest and that in fact what we are doing is noble.  Since the mid 20th Century, particularly accelerating since the early 1960s, we've expanded the boundaries of civil litigation so that cases can be brought that never ever could have been in earlier eras.  Not that some of this conduct wasn't always awful.  But in an earlier era, for example, it wouldn't really have been possible to complain that you were forced into a sexual relationship with somebody as he was your boss.  If the news broke, both of you would have been subjected to shame.

Every time somebody is sued, its a nightmare for them. We get used to that.  For them, even if they're insured, its traumatic and they live with it night and day.  Only in the cases where businesses are defendants can this be different, if they're used to being in this sort of situation, and some are.

Years ago, just at the time I became a lawyer, my father told me a story about the building he was a co-owner of, where his office was. Before he became a co-owner the owners had been sued for a slip and fall.  The enter thing had, it turned out, been set up.  One of the owners, not one of the lawyers, realized that the date the un-witnessed slip and fall had allegedly occurred was a no snow day.  He undertook to do the research to prove that, stopped a settlement from happening, and the case ended up being dismissed.

Anyhow, while the suit was pending depositions were taken and one of the plaintiff's lawyers, who was, or rather had been, a friend of one of the owners, told him before the deposition, "It's nothing personal".

He replied, "For me it is".

And indeed, it surely is.

Chief Big Foot, killed at Wounded Knee

But that's all how it has to be.  Right?

Not really.

Indeed, the United States is uniquely litigious.  It's well known that it's actually harmful to American business as so much more litigation goes on here than elsewhere.  Products litigation, lawyers will point out, has made American products safer.  But by the same token its made American products stupid, with warnings on every imaginable thing.

And to go one step further, lawyers can act horribly towards individuals in the course of litigation.  Just because somebody is a defendant doesn't make them a bad person.  It make them a defendant. Some defendants are bad people.  But a lot of them are far from that. Even where they are liable, many just screwed up and nothing more.  Treating them as if they are awful human beings is awful.

Indeed, as a profession we really don't have the leeway to do this.  A casual review of the newspapers shows that a humans, we fall as short as anyone else.

What is the point of this?   Well, not much.  It's just a plea.

Try to remember that in the course of work, we're not saints because its our work.  We should consider the impact of what we do.