In Kind Memory of Joseph Markowitz
It’s ironic that the president who led us through by most measures our most destructive war had some of the most profound things to say about peace-making. Beginning as a trial lawyer, he recognized that trial work should be approached with the goal of making peace, rather than creating new conflicts. Lincoln figured out how to achieve that goal within the justice system. Then, most significantly, he carried these insights onto a global stage, showing how peace-making skills can be developed and expanded to resolve our most difficult problems.
The first quote is one often cited be lawyers and mediators in an effort to persuade clients to think beyond their immediate perceived interests:.
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Lawyers who have reached this stage of enlightenment are merely telling clients that they should consider the full range of costs and risks involved in litigation before taking a particular step. Yet lawyers often fail to give this advice, either because they themselves do not appreciate its value, because they fear it will be unheeded, or because they carry too narrow a view of their own self-interests.
How can we best help clients avoid litigation? I often think of the second quote to try to answer this question. It took me years to realize that most of my cases, no matter how I approached them, were going to end by negotiated agreement, and that many of the things we do in litigation take us further from that goal. It seems paradoxical to suggest that in an adversarial system of justice, our goals can be better achieved by avoiding fighting, but it should considered even more paradoxical to resolve conflict by fighting. So:
Quarrel not at all. No man resolved to make the most of himself can spare time for personal contention. Still less can he afford to take all the consequences, including the vitiating of his temper and loss of self control. Yield larger things to which you can show no more than equal right; and yield lesser ones, though clearly your own. Better give your path to a dog than be bitten by him in contesting for the right. Even killing the dog would not cure the bite.
So easy to state the rule, yet so difficult to put into practice. Perhaps because it comes so naturally to most people, especially to those who chose trial advocacy as a profession, that we should fight to achieve our goals. It takes a while to realize that NEVER QUARRELING is usually a more successful strategy. Once we decide we’re never going to quarrel, what are we going to do instead? We’re going to agree to the extent can with whatever the other side is suggesting that doesn’t harm our client’s interests. We’re going to propose solutions that serve both sides’ interests. And we’re going to attempt to persuade the other side that they would be better off at least considering what we are suggesting. We’re going to listen more than we talk.
The third Lincoln quote about peacemaking that I often think about, is the shortest, most profound, and hardest to swallow:
Do I not destroy my enemies when I make them my friends?
Did Lincoln really believe this? I think so. Lincoln must have grown to understand that you cannot cannot fully achieve peace by making a cold calculation of cost and risk, the method followed in his first quote. An enduring peace can only be achieved by recognizing our shared humanity, recognizing that there is no “other” that must be destroyed in order to achieve peace.
In our field, this method is known as transformational mediation, because it requires parties to change something in themselves before they can solve the conflict. Using any other method still leaves you with enemies, or forces you to annihilate them. Making an effort to understand their concerns can eventually lead to a more genuine peace.
Joseph C. Markowitz has over 30 years of experience as a business trial lawyer. He has represented clients ranging from individuals and small businesses to Fortune 500 corporations. He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own. In addition to general commercial litigation, Mr. Markowitz has expertise in intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation. Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in the Central District of California, as well as private mediations. He has served since 2010 as a board member of the Southern California Mediation Association.