Applying Kindergarten Lessons to the Practice of Law

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“Since the beginning of time, our society has been searching for a system whereby we must treat each other fairly and hold each other accountable. It seems the task is becoming more difficult.”

We are all taught lessons in kindergarten that are applied throughout life. Share everything. Play fair. Say you are sorry when you hurt someone. As we progress through grade school, these lessons compound and we acquire skills in reading, writing and arithmetic.

I look back at those rules from time to time, even reflective of where my practice has come personally and as a profession. From my first days in Jacksonville at Cole, Stone, Stoudemire, Morgan & Dore, insurance defense was my business for the better part of a decade.

It is a field that most people don’t understand – an industry of lawyers paid by insurance companies and businesses to defend their interests. For us, it was in blocks of .1, or six-minute integrals. I have no idea how many .1’s I billed from 2001 to 2010. It was tens of thousands of hours and the battle between the company paying the bill, the person we represented and our profits were always real issues to be dealt with. We were paid to dig deep, explore, surveil, search and subpoena. I remember feeling like the sleuth, with the mission of exposing the malingering, untruthful lot of people who sought money for injury.

As a lawyer who sees people on very bad days, we see people involved in bad situations because they were under- insured and worse, underinformed. Many people use the expression, “full coverage,” when describing their auto coverage. “Full coverage” simply means legally compliant and in Florida, that will oft en leave a true victim empty. Why? Some insurance is more profitable than other insurance.

There was a case which made me change my mind about my profession. Warren Anderson well represented an injured nurse who was hurt in a car wreck. As I reviewed surveillance taken of her family playing on a beach, videotaped from the sea oats just behind them, I began to wonder what I was doing. I had already picked her apart about whether she could carry one jug of milk or two at one time, but this was different.

This isn’t some Jerry Maguire “epiphany” piece. I had one which led me to my own firm, but I constantly see things wrong with our side of the system as well.

In an advertising lawyer’s book on how to build the perfect practice, he talks about how lawyers at his firm are penalized $25,000 if they don’t try three cases each year. The purpose is to let insurance carriers know they are serious, he explains. Does that help the client? What if their case is not quite ready for trial, but their lawyer is sitting on two trials? What if the client’s case is ready for trial in November, but the lawyer has his or her quota and nudges it to the next year? Is justice delayed or denied? Does it matter whether this has ever actually happened or simply has the possibility of happening? The appearance of impropriety? Neither side is without its flaws, bad actors and balancing of profits and people.

Lex Reception

With “Better Call Saul” and “Making a Murderer” steering conversations about the perception of justice and lawyers, we are an oft en doubted and ridiculed profession. Invariably, a stranger will quote a particularly harsh line from Dick the Butcher in Shakespeare’s “Henry VI,” saying, “The first thing we do, let’s kill all the lawyers.” He was a part of a movement of those who thought one could find success if he disturbed law and order. Oft en cast as a broader opinion, Shakespeare meant it as a compliment to attorneys and judges who instill justice in society.

Since the beginning of time, our society has been searching for a system whereby we must treat each other fairly and hold each other accountable. It seems the task is becoming more difficult. We venture further from what we learned in kindergarten. While there is job security in that premise, it is only making justice more adversarial and more about the “win” rather than fairness and compromise.

More lawyer billboards and advertisements are bought. Will there soon be attorney faces on every Uber? Meanwhile, corporations tend to put profits over people and others will make sure they have “billed the file” before compromise is an option. Insurance carriers will pay more for animated animals and less toward consumer education. We may not be able to stop any of this from happening and lawyers may have a long, fruitful career fighting for clients in an adversarial righteous crusade of sorts.

Think of dispute resolution from the position of two kindergartners. They don’t lawyer up; they share and apologize because being put in the corner as an adult can be very expensive and embarrassing for our clients. They are the ones who matter the most. John Phillips

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