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Litigation and Politics

I have always been a political junkie, but have found myself increasingly disenchanted with the tone of national political debate over the years. It seems that almost 40 years later, we are still playing out the divisive conflicts over the Vietnam war, and that, perhaps since Nixon’s resignation under threat of impeachment, we have been locked in an endless cycle of payback and recrimination. In looking over the field of presidential candidates for next year’s election, I ask myself which ones might have a chance of getting us beyond this vicious cycle. Unfortunately, it appears that most of the candidates on both sides feel compelled to appeal to the most rabid members of their respective bases, and therefore offer little hope of reconciliation. On the Republican side, it would appear that John McCain offers at least some chance of openness to good ideas regardless of whether they fit with his party’s traditional ideology. On the Democratic side,Barack Obama is actually talking about transcending the traditional nastiness of partisan politics. But the smart money seems to be on Rudy Guiliani and Hillary Clinton right now. If those are our choices, then we are choosing divisiveness. Then we are choosing more of the same kind of politics that many people are sick of. Of course, nastiness in national politics is nothing new, and the levels of conflict today may in fact be less intense than in the earliest days of the Republic, and certainly less intense than during the Civil War period. Maybe we should expect nothing else, and hunker down for the fight.

Is such vicious conflict unavoidable? Is there something in people that needs to fight for what they believe in, and make enemies of those who disagree? It seems clear to me that the need to fight is an important part of the human character, and this is not always a bad thing. Struggle for what we believe in is what gives meaning to our lives. This is true in litigation as well as politics. People who find themselves engaged in a lawsuit often claim the most steadfast devotion to matters of principle and justice, and they often have a hard time letting go of the fight, even when it makes business sense to settle. Parties as well as attorneys get caught up in the battles of litigation. We have a natural desire to win, and to beat the other side. I should not complain about these tendencies, since they keep me in business, and I find myself attached to the battle as much as anyone. I will admit that I like to argue, and I always want to win. Otherwise I probably would not be a trial lawyer. But since most civil cases do and should settle, I often have to try to persuade clients or adversaries (or both sides when I act as a mediator) of the advantages of putting the struggle behind them. I have to explain that you don’t have to agree with the other side, but you have to recognize that the other side’s position does have a chance of prevailing. Moreover, it is important to recognize that sometimes overly aggressive litigation tactics have a tendency to provoke similar tactics by the opposition, leading to an increase in costs for both sides, and often making it more difficult to resolve the dispute.

In the political arena, the same principles hold. People often forget that it is not always beneficial in the long run to try to destroy the other side. Goldwater’s defeat led to the Republican party’s rebound. Reagan’s victory gave life to an anti-nuclear movement (of which Reagan eventually became a part). Clinton’s election sparked another revival of the conservative movement. And Bush’s unpopularity has caused a huge drop-off in support for Republican candidates. It is not only that candidates often do the opposite of what they previously stood for (e.g., Nixon going to China), but also that they frequently provoke such a backlash that they re-energize the opposition.

If we ask which candidates seem most likely to re-vitalize the forces on the opposite end of the ideological spectrum from them, the answer would seem to be Clinton for the Democrats, and Guiliani for the Republicans. If we give in to the impulses of payback and recrimination, these are the kind of candidates we will continue to elect, and their time in office will be followed by an equally divisive reign by the opposition. It seems to me that an era of national reconciliation would be good for the country right now, if only to help us unite against common enemies, and beyond that, to begin to solve some pressing world-wide problems. To get there, we should seek out unifying rather than divisive candidates.

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