A boy’s drum beats as a ragtag militia marches across an open field to face the formidable sea of redcoats. The sun rises over a Maryland creek as soldiers button their blue and gray coats and prepare to proceed against brothers and neighbors. Waves pound the troop carrier as it approaches a French beach, German shells strafing the shallow coastal waters. G.I.’s ready their rifles, joke, and steel themselves for the imminent assault. Infantrymen scan the dense Vietnamese jungle as their helicopter descends to a landing zone and a certain firefight. Soldiers stealthily pad into a remote Afghan village sure that combatants lurk in the shadows.
Throughout history, our fighting men and women have stood on the precipice of brutal battle and committed themselves wholly to the cause, the incredible risks be damned. I struggle to comprehend so many aspects of the realities of armed conflict, but the most poignant moment in my imagined view of warfare is the brief time before the bullets start flying, when nerves are on high alert and the rush of adrenaline has not yet begun.
It seems to be a moment of clarity, a chance for the past and the potentially short future to coincide, an opportunity to consider the many sacrifices made and the ultimate sacrifice to come.
COURTROOM ANALOGIES A STRETCH
Analogies of courtroom wrangling to actual war are legion and tragicomically overstated. It is tragic that these metaphors belittle the lives given for the sake of our country. It is comical that attorneys have such a high opinion of the importance of the profession that they would dare compare themselves to generals, let alone the enlisted men who die far too young. Many of the most undesirable traits of the legal system can be traced to lawyers’ too-literal self-identification as warriors. It is a fallacy to assume the mantle of soldiers without also giving due reverence for the dead, for the bodies maimed, for the minds tortured, for those whose fates are still a mystery.
Exaggerated though the parallels between litigation and violent combat may be, they do exist when viewed in the proper context. Each is a study in risk and sacrifice, although with much different consequences. Losing a lawsuit may be life-altering, but the defeated party does not leave the courtroom in a coffin. This is not to totally underestimate the risks assumed in litigation. Servicepersons put their lives on the line, litigants stand to lose the financial security that they have spent a lifetime amassing.
CLIENTS AKIN TO GENERALS
Evaluating the parameters that can lead to victory or defeat is the attorney’s job, but only the client can decide their level of risk tolerance. In this way, the client has the general’s macro-level decision as to whether to engage in battle. It is the attorney’s duty to act more like a sergeant: sniffing out pitfalls and leading the troops to a safe outcome. As facts develop and the attorney is able to discern that the lawsuit has become a suicide mission, woe unto the client who plunges forward in the face of such news.
Litigation is not akin to a modern war, where the generals may be thousands of miles from the line of fire. Today’s clients are more like ancient generals speeding onto the battlefield on horseback, fully exposed to the bloodshed. After all, it is the client’s, and not the attorney’s, resources that are typically at stake.
MANY SACRIFICES MADE
Besides the obvious sacrifices, our troops give up so much: A “normal” life, time with their families, too often their physical or mental health. Disturbingly, parties to a lawsuit may make similar sacrifices, especially in high-stakes, bet-the-fortune litigation. With the stress, money and time involved, litigants may begin to understand the rigor of military life. To avoid these deleterious outcomes, a more beneficial type of sacrifice should be contemplated. Ridding one’s self of the ego-driven need to be right and the quest to achieve perceived justice is often the best type of sacrifice that can be made.
Remember that civil litigation is usually a choice, whereas stepping onto the battlefield is often not voluntary. The time before engaging in a lawsuit should feel as portentous as the minutes before our brave soldiers venture once more into the breach.
Above all, as we celebrate the return of summer, please take the time to pause to reflect on the millions of American servicepersons who have taken the great risks and given the highest sacrifices. Thank you seems an inadequate tribute, but it is a start.
T.J. Voboril is a partner at Reynolds, Kalamaya & Voboril LLC, a local law firm, and the owner/mediator at Voice Of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, firstname.lastname@example.org or visit www.rkvlaw.com.