Welcome to the Jungle

It starts, of course, with a disclaimer. Despite all the hoops, the hundreds of books, despite having been inspected, tested, and stamped ‘Approved’ like some grain-fed slab of graded flesh, despite my brain being laden with some desperately important things I think everybody living in this country should know, the first words I feel compelled to spit out at you are these: don’t rely on anything I say.

That’s right, I’m a commoner-cum-lawyer, a fresh member of perhaps the world’s most fretful profession. Trained as a worry-wart, highly honed in hand-wringing, paid to perceive, assess, and, if possible, avoid all conceivable risks a situation might present. Just like doctors or wilderness guides, we lawyers sell ourselves as centrally concerned with someone’s well-being. Sounds pretty noble – except we’re not pitted against parasites or trackless swamps; in this jungle, our enemies are each other. Selling a home and don’t want to get screwed? Hire a lawyer! Need to shelter that bank account or protect your latest patent? You’ll find a firm designed for the job. When it’s you against the world, or you trying to get (or stay) on top of the world, you’ll probably want one of us by your side, power suit gleaming like an archaic suit of armour, while everyone else fades into murkiness, suspect, untrustworthy. For as long as you’re a paid-up client, your best interests are, so we say, paramount. Or rather, mounted right under our own. That’s why we’re so good at telling you (though sometimes in fine print or foreign-sounding language) exactly what we’ve agreed to do, be it helping you start a business or stand up to a criminal charge. If the scope and limits of a job are clear, the thinking goes, so too is the potential liability we face if we’re accused of screwing up. Legal training installs a blinking signal near the front of our skulls, constantly warning: what if I get sued? How do I protect myself against being sued? Is this guy gonna sue me? (the concern often emanates not far from that part of the brain busily wondering how to sue someone else). Hence, because you probably didn’t pay me to write this, nothing I say on this page, or in passing on the street, or heard warbling from the shower stall at the Y, is meant to be taken as legal advice. I don’t want to get sued.

I exaggerate to make the point: although we’ve progressed in many ways from the general savagery exhibited in horror films about our apish forebears, when shit goes sideways and lawyers get involved, we’re pretty much still in the Attack! Defend! realm of social relations (although thankfully with slightly less fang-baring and bashings with blunt objects). It’s a me-first framework, and not an easy one to evolve out of. Our fearful, covetous hearts, drum-beating beneath slick outfits and polished speech, wrapped up in courteous conventions, nevertheless still drive much of the litigiousness and twisted legalese our communities spend so much time and money dealing with. True, sometimes the sky really is falling and your ass (among other parts) better be covered, but I can’t help but wonder, with what remnant of kindergarten wisdom remains after twenty subsequent years of schooling, that so many of our disputes could be much more elegantly and enduringly resolved if the people we hired to help were a little more like Fred Rogers than Yosemite Sam. For that transformation to happen, though, one of us has got to make the first move: either the policymakers and professionals incorporate collaboration as a viable practice, or the public they serve starts to concertedly demand it.

Some areas of the law are already being nudged in this direction. One example of ‘top-down’ change is in family disputes. The burning issues of who gets the kids or their share of the toaster oven used to be characterised by bitter court battles, simply because sour love is among the worst fertilizers for reasoned compromise. But while that facet of human nature isn’t likely to change much, our overworked system has incorporated several interceding steps, from info sessions to mandatory mediation, designed to assist (or impel) people to find their own solutions before the courts get involved. Other, more participant-driven innovations are emerging in civil suits, where lawyers and judges would probably happily argue over the fine points of legal doctrines like whose client is a more “reasonable person”, so long as they are being paid to do so. Trouble is, some people don’t really like the idea of spending more on the legal process than on the actual value of whatever was lost, and so we’ve come up with quicker, cheaper ways to let folks settle who owes whom for what. These innovations don’t always work, and come with some risks of their own, but represent some small ways for the system to lay down its intellectual weaponry and start to help folks solve their problems.

My chosen area, alas, is criminal law, which has long been a kind of hunchback cousin to the more clean-cut areas of dispute resolution. Oh, there’s no shortage of real problems to tackle, but the trouble is, there’s too often a chasm between what the professionals and actual parties think they are. While I’m wound up in establishing that the cops had you constructively detained while they asked unconstitutional questions, you might just want to say sorry to that person you hit. While I need months to get your matter to trial, you might just want to take your lumps and get on with life. And most importantly, while the Queen might trumpet that justice must be done, you, victim or accused, may have very little say in what that justice looks like, or really means.

I have to end without answers (I guess I didn’t really give any advice either). But in future columns I hope to explore how some of these questions are playing out in Hamilton, in the day-to-day world of conflict creation, resolution, and sadly, exploitation. In the meantime I’ll try to tread the jungle in the spirit of what Utah Phillips said:

“You want to be a pacifist, it's not just about giving up guns, and knives, and clubs, and fists, and angry words...but giving up the weapons of privilege and going into the world completely disarmed. Try that.”