“You graduate today as lawyers, some of you ready to be licensed to practice and others who are already licensed but are now masters of new skills and areas of practice. You have taken the first big step to master a field that society associates with disputes and conflict at a time when the most common adjective to describe our society here in the United States, and in many societies around the world, is polarized. People are growing ever farther apart, clustering around two poles. Surely you, as lawyers, are likely to make matters worse?
After all, I am guessing, with your families here, that when you came home in your first year you were impossible, arguing constantly and questioning everything, turning black into white and white into black. That is a big part of what we teach you to do. And many of you will go to work for firms where you will represent either the plaintiff or the defendant, two sides battling one another.
When I taught civil procedure, I would always begin with a quotation from one of the textbooks that I used: “civil procedure is the etiquette of ritualized battle.”
So imagine a movie with the two knights pounding at one another in their armor, lances at the ready, the low fence between them. If any of you have seen a movie that came out last year with Jodie Comer, Matt Damon, Ben Affleck, and Adam Driver called The Last Duel, it is the story of a trial by combat in medieval France, in which a case was resolved by a legal duel before the king. That was ritualized battle, just like a courtroom battle today. Today, it means that instead of killing each other, we win by fighting according to tightly prescribed rules and allow a jury or judge to decide the winner according to law. Right triumphs over might.
So if I ask you how you will help bring society together, one answer you might give is that you help people resolve disputes that might otherwise descend into violence.
But what happens when people stop believing that the rules are fair or that they are fairly applied, so that when the judge or jury decides a case, it can drive the two sides farther apart? When one side believes that the other has somehow rigged the system? Politicized the law?
I want to suggest a number of ways that you, as lawyers, can help bring people together.
1) You might say to me: we are not litigators, we are problem-solvers: litigation is only one way to resolve a dispute. And the clients who come to us have many different problems to be solved, most of them not requiring a lawsuit. They want to secure a government contract, or get a patent, or close a deal. Absolutely right. It is important that you see yourselves, and you help others see you, as problem solvers.
And how do you solve the problems your clients bring you?
2) You listen really hard. You figure out what your client really wants, which might not be what she thinks she wants. To take a very basic example, she might come to you thinking that she wants to incorporate a business, when actually she needs to set up a partnership. Or she might think she wants to sue her neighbor for property damage, when what she really wants is an apology. You listen, you ask questions, you explore alternatives.
3) You put yourself in your client’s shoes and also in the shoes of the other side. When we teach you to think like a lawyer, we teach you to make arguments on any side of any question. Many of you resist that teaching, thinking that we are stripping you of your personal principles and convictions, transforming you into a hired gun. On the contrary, learning how to make arguments on different sides of a question is learning that there are arguments on both sides, and learning how to hear them. You cannot REALLY hear them unless you can put yourself in their position.
That is the core of the liberal value of tolerance, but also the precondition for order in a society that chooses to engage in conflict with words rather than guns. It is our best hope for rational deliberation, for solving problems together not based on eradicating conflict, but for channeling it productively and cooperating where possible.
4) As you do that, you are taking what seems like a simple story and making it more complicated. The truth is ALWAYS complicated. Just think about what you have learned about eye witness testimony: the ways in which multiple people can watch the same event and see very different things, depending on their angle of vision, what they are focusing on, and what they are predisposed to see.
a. The best demonstration of this, for everyone in the audience who has not gone to law school, is “the invisible gorilla experiment.” (If you don’t know it, click the link and do it now before reading further.) You have a group of six people, three in white shirts and three in black shirts. The people in white shirts are passing a basketball to one another and the people in black shirts are passing a basketball to one another, and you tell the audience that they are supposed to count how many passes the people in white shirts make and ignore the passes the people in black shirts make. And they are all moving around in a circle. After about thirty seconds, a person in a full body gorilla suits walks into the center of the circle and beats his chest and then walks out. About HALF of the people do not see it, and will tell you you are crazy when you say it happened.
b. Making simple stories more complicated, by listening carefully and questioning what you hear, is the key to taking what conflict experts call high conflict, where people are deeply dug in and see everything through the lens of a simple right/wrong or true/false binary, and opening up paths to reducing the emotional intensity of that conflict, to finding common ground again.
5) As you remind people of what unites them in addition to what divides them, you are reminding them of their common humanity.
a. As I look out on this audience, I know that you undoubtedly have different politics. But you all love and are proud of your children, grandchildren, siblings, nieces, nephews friends who will cross this stage. We have that love and pride in common, one of the defining features of our humanity.
b. We have also have our human imperfection in common. I had a crisis with my organization in 2017, and when I turned to my board for advice, one of my board members told me to run toward the criticism. He said: “Imagine you are having an argument with your spouse. It is absolutely clear to you that you are 98% right — you just KNOW you are right and your spouse is wrong. But perhaps there’s a little niggling voice in the back of your head that says maybe, just maybe, she or he is 2% right. Perhaps you DID leave the dishes in the sink again or DIDN’T remember to pass one a message. My director said, “run toward that 2% and use it as the start of a learning journey.” Here at the University of Dayton, with it’s Marian tradition, I could rephrase that lesson as “we are all sinners.” We all make mistakes, and we can all learn from them. That is part of our common humanity, a part that lawyers often see in their work. You can remind yourselves, your clients, and everyone you engage with, from judges and juries to office clerks, that we are all flawed.
So go forth. Go forth as lawyers, with pride in your new profession. Go forth as problem-solvers, as active listeners, as empathizers, as complicators, as mediators. Go forth as observers of human nature who can remind us all of what we have in common. Go forth as healers!
Congratulations to the class of 2022.”