I was involved in a litigation conference several days ago. My entire adult professional life was in the world of operating rooms and intensive care units. Sitting in a room with attorneys and the various parties involved in litigation is something that is part of their everyday lives, but the process is almost surreal from my prospective. I was reminded of the You Tube video of the deposition of Bill Gates by David Boies. Attorney Boies had been in thousands of such proceedings—Bill Gates not so much. Bill Gates was made to look like a fool, because he tried to control a process that he had very little experience in. Mr. Boies explains what happened and why in this clip.
The conference I attended was not a deposition. There were no rules of order. It was a free flow discussion between two parties that respected each other. We left being able to understand each other’s positions better. Some, but not a lot of progress was made. When two factions with different goals are pitted against each other like in a deposition—gotcha moments are used as weapons. When two factions are in the same room trying to find a resolution to a problem, the process and the mood in the room is very different.
The seasoned litigators in the room seemed to be very good listeners. They were searching for common ground—and there was some common ground to be found. In other similar situations—particularly in the deposition format and with younger litigators I have noticed that a more argumentative format is deployed and often less good is accomplished. The older attorneys seem to have more of an appreciation for “process” and use the opportunity as a tool. The younger attorneys it has been my experience use their positions and the format and even correspondence as a “weapon”.
I see parallels in the world of medicine with young professionals making the same type of mistake. They use their positions of responsibility as a political weapon. I believe this stems from a shift from a “patient centric” model where the doctor has a responsibility to the patient first, to a public health model where the professional responsibility is perceived as being to “the common good”. Population based public health has all but destroyed the doctor patient relationship.
When patients and clients become tools to advance a political agenda the professional fiduciary code that defines the relationship of doctor to patient and client to attorney takes a back seat. It is hard to have a sense of “service before self” when one is serving corporate interests rather than an individual or group of people. What percentage of your clients do you even know their first names? When young attorneys or doctors see their mentors using their positions not in the fiduciary sense, but in the political and purely economic sense, what kind of mentors will they become in thirty years? What kind of senior partners, judges, and medical role models are we raising and influencing for the future?
What happened to Donald Trump on March 30th is a tragedy. The law is being used as a weapon and not a tool. The prosecutor’s allegiance to a political agenda and narrative has taken the place of a fidelity to The Constitution—due process and innocence before proven guilty. A perp walk and a mug shot are the goal. Not any form of justice to the individual.
I believe—and I am not an attorney, but it has been said that in any civil or criminal proceeding, both the defendant and the legal system are on trial. What happened during the Covid political pandemic also placed the public health system on trial. In the Case of Donald Trump, the legal system has already been shown to be guilty of prejudice in applying the legal process. In the case of Covid—The State at all levels has been found guilty. In each case for the same reason. When the group has been prioritized over the individual, our systems of justice and medicine will always fail.
What happened in the law office several days ago, showed the fracture line between the new and the old order and standards. If one doesn’t respect the process and the original intention of the rules of the game, how is one ever going to respect an individual or a group of individuals against the government or large corporations? If a doctor places his allegiance in a large hospital system or a government mandate, over the well-being of her individual patient, what good is being a professional?
I am glad I have always had a doctor that knew my name. I am glad I have an attorney that represents people and not “black boxes”. The pay may be better in the second instance. But I know and understand that my doctor and my attorney go to bed at night knowing that their patient or client has been well served.