A lawyer friend tells me about the malaise affecting many in his fielda spiritual crisis, he calls it.
The daughter of a friend graduates from a prestigious law school with high marks, practices for several years, then decides that law is not for her.
A note from a judge says he is finding his work meaningless. A zealous death penalty attorney says he feels isolated from the rest of humanity.
Then there are all the nasty lawyer jokes we all hear.
What is going on?
As a practicing attorney, Douglas Noll knows what is wrong and, in this book, has part of the answer. The problem is in how we have come to conceive law, justice, and especially the lawyers task. The solution requires us to understand not only how the legal system works but also how people work. Above all, the answer lies in a reconception of the lawyers task and self-image.
Because the problem begins in law school, in how law students are trained, the place to start is in law school. Thus this book, designed as a text but of obvious relevance to anyone interested in the law or in conflict.
One of the primary origins and functions of law is to provide a means of managing conflict. Yet lawyers receive little training in understanding conflict, and they rarely conceive their responsibility as helping to find a peaceful resolution to conflict. It is no surprise, then, that the process of the law often actually increases conflict and creates more wounds.
Key to the problem is in how attorneys primary task has come to be defined: as zealous advocates for their clients. Noll does not ask them to give up the role of advocate but to balance it with another role, another way of serving clients interests: that of peacemaker. Someday, if we listen to him, it will be normal for lawyers to prepare not just one brief but two: a legal brief, but also a "conflict map:" an analysis of the underlying conflict and possible processes for resolving it.
This is not pie-in-the sky. I know lawyers who work in this way, and I have seen the results. New Zealand is an example of a country where lawyers work is beginning to be reconceived like this. Here, lawyers ("youth advocates") are specially selected to be part of the restorative conferences that take the place of the courtroom for most juvenile cases. I have sat through screening interviews for attorneys who want to do this, and the interviews are toughthe bar is higher than for death penalty lawyers in this country! These youth advocates are being asked to be not only highly competent but compassionate; their task is not only to watch out for the interests of their clients, but to help the whole process of resolving the situation, for victim as well as offender. Although it would be a surprise in an American legal setting, in New Zealand it seems normal to hear a conference facilitator specifically thank a lawyer for being present "to help us through."
Another example is the pioneering work in death penalty cases called "defense-based victim outreach." While the specific work must be carried out by an independent "victim-liaison" worker, rather than by a lawyer, it grew out of the concern of death penalty lawyers to go beyond their role as advocate. To function effectively, this work requires cooperation and support from attorneys who have a vision for peacemaking.
Defense-based victim outreach has emerged as an effort to incorporate survivors needs and concerns in the trial and outcome by giving them access to the defense as well as the prosecution. Reflecting a restorative justice perspective, this approach also seeks to encourage defendants to take appropriate responsibility in these cases. A number of plea agreements have been reached that were based on victims needs and allowed offenders to accept responsibility. While there can be no fully happy ending in such cases, the process can reduce harm and assist victims as well as offenders on their difficult journeys.
Among lawyers today there is a movement in the legal profession today to reframe their profession to incorporate a more humanistic vision. It is still a minority movement, to be sure, but it is growing and reflects a larger concern. Various terms have been used: wholistic law, restorative lawyering, the lawyer as healer. Noll has given us a very concrete and practical image: the lawyer as peacemaker. As I think of each of the people I mentioned above, I believe they will welcome this. I believe you will as well.
Howard Zehr, Harrisonburg, Virginia, is Professor of Restorative Justice in Eastern Mennonite Universitys graduate Conflict Transformation Program, which he co-directs. Zehrs book, Changing Lenses: A New Focus for Crime and Justice, has been a foundational work in the restorative justice field. Other recent publications include Doing Life: Reflections of Men and Women Serving Life Sentences (1996), Transcending: Reflections of Crime Victims (2001); and The Little Book of Restorative Justice (2002).
|Click here to explore joining InnerCircle readers club and receiving occasional updates and special discounts.|
© 2003 by Cascadia Publishing House