We no longer rely on the competition between lawyers to reveal the truth. We have also come to see that competitiveness itself as a problem. It is one I am much too familiar with, and in my courtroom it shows up in the increasing nastiness of practice and the growing difficulty I have in settling or compromising cases. We are a litigious society, we are often told, and although that litigiousness is most apparent in the divorce courts it is striking enough in general litigation. The most trivial frustrations and disputes give rise to endless recriminations and bitterness.
Every procedural step is like a battle zone.
We routinely receive motions for preclusion orders because attorneys will not comply with proper discovery demands until they are threatened. It is easy to blame lawyers for this mess. But pit-bull aggressiveness on the part of attorneys is only one side of the story. The clients, too, have a share of the responsibility. Too many of them don't believe they may lose.