It is a rare occasion that I get to catch NPR’s moribund Day to Day. It’s not the best NPR has to offer, and it’s at an awkward time in the afternoon; a time when I am usually researching, arguing, drafting, deposing, napping, or some combination thereof. It’s just as well – the show is scheduled for execution in March. I’ll miss the ol’ gal when she’s gone, but not as much as News and Notes. However, I did manage to hear a short D2D piece last week entitled “Monster Companies Settle Name Differences.” It’s a harrowing tale of mini-golf, cable, and litigators.
I’ll summarize for those of you that don’t have 3 minutes and 53 seconds to listen. Monster Mini-Golf opens in California. Unfortunately, Monster Cable is already there. The latter had a business model that can basically be summed up as “sue anything else in America that calls itself ‘Monster.’” According to NPR, Monster sued hundreds of businesses last year for this peccadillo. Cable company is Goliath, Mini-Golf is…well, mini. The two sides try to settle it. Then, as Alex Cohen reports it:
“Both of you were on the phone, with your lawyers, and you guys weren’t getting anywhere. And then you kicked the attorneys off the line. How did that change the flow of the conversation?”
To which the mini-golf lady replies: “I think, all of a sudden he [Monster Cable's CEO] becomes human. It’s as simple as that.”
Cohen’s characterization is disturbing. Not only because it portrays the lawyers as a barricade to a peaceful resolution, but because there’s a mustard seed of truth to that portrayal. Probably more than a mustard seed. Probably a peach pit or something. While I do not like to think of lawyers as a buffer zone between the peace pipe and the parties, nothing can derail a negotiation like a zealous advocate.
Take for example a custody/divorce mediation. A fine opportunity for the litigants to work it out themselves. And many times, they can do it with nary any bloodshed. But inject too much zealous advocacy, and you run the risk of killing the patient:
Respondent: I’d be willing to pay $500 a month in child support.
Petitioner: That sounds good.
Petitioner’s Zealous Advocate: Hold on. Actually, Petitioner is entitled to $528.00 per month under the guidelines, and due to the disparity in their incomes, Respondent should pay $1000 in attorneys fees.
Respondent: OMG I’M NOT PAYING ANYTHING AND I WANT FULL CUSTODY AND SHE’S A CHEATING BITCH ETC.
On the whole, this kind of thing may be the exception to the rule. Obviously, an effective advocate provides an important wall of civility between these who might otherwise uncivilly pluck out each others’ eyes and teeth. But it’s equally obvious that there are instances in which advocates distort communication between parties more than they foster it, and that can have equally disastrous results. I worry about this. Not just in mediations, but in conflict resolution (in the broadest sense) on the whole. Israel’s not giving up any parenting time with Junior because Palestine is seeking an unreasonable sum in child support. Palestine is entitled to more parenting time because everyone says so, and because, by God, Israel isn’t paying enough child support. Of course, each side has the most zealous of advocates. But there can be little doubt that they are more problematic than prophylactic.
On this topic, the comments of Monster Cable’s CEO are telling: “Our intention was never to hurt any other businesses, just to protect the mark. And when I learned of the hardship the lawsuit had placed on them financially, I thought the right thing to do was to [voluntarily dismiss the suit and pay the golf co.'s legal fees].”
It is often the case between litigants that there is some mustard seed of affection. Parties used to be co-workers, friends, lovers, spouses, etc. Even simple commonalities of human existence can, and often do, bring people together. But I think it’s difficult – perhaps impossible – to be mindful of this while striving to be a zealous (or even worse, “aggressive”) advocate.
If anyone’s reading this, I’m interested to know how you lawyers out there identify and deal with cases that might be solved quickly if the parties had a face-to-face meeting and a couple of pints of ale. Is this even a lawyer’s business? If not, should it be? Any of you have your own harrowing tales to tell?
It seems to me that even if the case is a sure-fire winner from a legal perspective, it may still be better in many cases to discourage litigation and be a peacemaker. Unfortunately, I (and I suspect most attorneys) have not yet developed the ability to recognize these cases before they become monsters which, if not created, then at least are prodded by zealous advocacy.