Saying goodbye to the courtroom
After 31 years as a courtroom lawyer, I have decided to walk away from litigation.
I have been mulling this decision for many years, primarily because of my disgruntlement — and my clients’ disgruntlement — over the costs, delays, and the sheer unpredictability of courtroom battle. Trial lawyers often comment ruefully: “I have lost cases I should have won, and just as often won cases I should have lost.”
It was not an easy decision. To be completely blunt, litigation is lucrative, even if it is sometimes ruinously expensive for clients. Litigation can also be immensely satisfying, when you win.
And more importantly, litigation can often be a worthwhile endeavor. Important test cases, such as Brown v. Board of Education, demonstrate why we need courts — and litigators. Even in my most mundane commercial cases, it felt good when justice was done.
But our society also needs peacemakers, and many lawyers are now turning to mediation and collaborative law as part of their practice. Mediation is now taught at almost every law school.
I worried about how my decision might be viewed by professional colleagues, many of whom regard trial skills as the very pinnacle of legal acumen. But peacemaking has a good lineage in our legal system. President Abraham Lincoln, known in his years as a country lawyer for his knack for settling cases, wrote: “Discourage litigation — as a peacemaker the lawyer has a superior opportunity of becoming a good [person].”
Chief Justice Warren Burger expressed a similar view. “The entire legal profession,” he said, “has become so mesmerized with the courtroom contest that we tend to forget that we ought to be healers of conflict.”
This metaphor of healing is instructive. In our medical system, surgeons play a role similar to that of litigators, handling the most extreme cases. If we had a medical system with more surgeons than primary care doctors, we would have a lot more surgery — and a lot more cost. Peacemakers are, in a sense, the primary care practitioners of our legal system, and we need more of them.
And so, three months ago, I turned my back on courtroom battle and began pursuing peacemaking as my full-time job. Since that time, each of my cases — whether I am serving as a mediator or as a collaborative law attorney helping my clients settle their conflict — casts me in the role of a dispute resolver.
The result of my decision, I am pleased to report, is that my office is just as busy as before. There is no lack of cases in which people are looking for peaceful resolution rather than all-out war.
In saying farewell to the courtroom, I do feel a pang of regret. It felt rewarding to represent Thomas Lee Ward, a death row inmate in Louisiana, to fight for the rights of Massachusetts workers subjected unfairly to random drug testing, and to handle a variety of court cases for the American Civil Liberties Union.
I greatly respect my fellow lawyers who go to court to defend the defenseless and advance civil rights and civil liberties. But at a certain point in life, most of us ask ourselves whether our work enables us to make the world a better place and resonates with our deepest sense of who we are. If the answer is “no,” perhaps it’s time for a change.
David A. Hoffman is founder of Boston Law Collaborative. He also teaches at Harvard Law School.