Less than two hours after Justice Scalia’s death was announced, the partisan shouts about choosing his successor hit a fever pitch. Each side stood fully convinced that their
view was right and their opponent’s was wrong. One had to dig through the Google search results to get to what we normally see when a public person of note passes on – the accolades for, and fond remembrances of, a fallen friend. This fracas was just the latest in a long line of issues polarized by extremists and egged on by the press and in the social media.
A common denominator in each of these dustups is the inability or unwillingness of opposing viewpoints to listen to each other. We fail to consider that maybe we are both some right and some wrong – that we share common ground. There is a full spectrum of one-issue special interest groups that push this no compromise approach. We have become so polarized that the notion that we might actually learn from our opponent is absurd. We have forgotten how to listen. Can you imagine the legal arena without compromise – no plea bargains, no civil settlements, no red-lined leases or contracts, every divorce case tried?
Of course not – we all know in our rational minds that such a system would fail under its own weight. At the same time, though, we refuse to listen to the other side. Sure, we get it, but this case is different … we are right on this one! We are trained advocates. Even when we acknowledge the truth, listening is not practical.
We just don’t have the time. The demands of our practices are increasing, our profit margins are shrinking and competition is increasing. Our clients don’t want to pay for thought – they want action. Common sense loses out – often at the cost of a win/win resolution. We no longer take the time to sit down with our opponent and listen to what they have to say. Our clients want win – not win/win. They expect it, don’t they? At least they are told they should, in a variety of ways from a variety of mediums.
Trying my first divorce case oh so many years ago brought on the realization that there is always plenty of blame to go around. I learned the hard way, more than once, that the best way to represent one’s client is to listen to what the other side had to say. Like much of the practice of law, though, listening is easier said than done. All but the best listeners stray far and often. But the more one listens, the easier it is to hear.
By listening to an opponent’s concerns, a lawyer is often able to craft a resolution that takes those concerns into account without sacrificing anything his client really wants out of the deal. By listening to her own clients, she understands what they really need. By listening to the other side, a lawyer can pick up information that may be valuable if the matter is not resolved. Sometimes having someone listen to their problem is all they really want …