To all my readers, let me start by saying I very much value your comments and feedback to my blogs. In my last blog, I discussed the meaning and various nuances related to the above titled pun. My close friend, Richard Salandrea, made the following comment: “Interesting that in law practice, at least the litigation part, most litigators would forbid the very use of the word ‘seem,’ as the object of litigation is to win or lose—there is no seem when debating an opponent.” As we all know, the practice of litigation is adversarial, quite the opposite of cooperative. Attorneys are rewarded for their debating skills in winning law suits regardless of their belief in the veracity of their argument.
Unfortunately, I believe we are seeing typical litigant behavior in our current political process in the United States. Our political leaders have adopted adversarial tactics lawyers employ to win verdicts that result in a winner take all situation. A better and friendlier way to settle disputes is through mediation in which both parties work together in coming to an agreement that both can abide. However, for this process to work neither party can be stuck on their locked-in view of what each perceives as right. The sine qua non to a successful mediation is when each party is willing to listen to the other side and drop the win-lose mentality implicit in zero-sum game tactics.
In the Op-Ed page of the New York Times, dated January 8th, two focus groups consisting of Democrats and Republicans were asked questions about how they perceived the present state of democracy in America. This is a first step in beginning to understand more clearly the opinions of the voting public. I am hopeful that these focus groups eventually can be combined allowing members of each party to interact with the opposing side. However, I was disappointed to see that many of the participants in the Republican focus group still believe the 2020 election results were not valid and, consequently, cannot accept that Biden won the U.S. presidency over Trump. This disbelief indicates a deep lack of trust they have toward the government.
We know a charismatic leader, such as Donald Trump, can have a huge influence on his followers. That fact, in conjunction with the human proclivity toward confirmation bias, make openness to others’ views, a quality that many of us have lost. Personal attitudes, many of which have been proven false, become further reinforced and strengthened by the ubiquitous nature of social media.
Sitting down and talking with members of the opposite party is a good beginning. 60 Minutes pointed out that such a program, One Small Step, is actually doing that right now. By giving one’s opponent the opportunity to be heard, we may be able to reestablish the faith in our governing policies that has been missing for so many of us. If a relationship can be formed where respect and trust is evident, then solutions to differences can follow. Perhaps when we emerge from the virtual life imposed on all due to Covid, in the live, we will see each other as humans and drop the absolutism that has controlled much of out thinking. This vision probably never will fit into the practice of a trial lawyer. But then again, most of our livelihoods do not depend on an adversarial approach to meet their goals. Thank heavens for that!
Dr. Bernard F. Natelson 