Beyond Vengeance, Beyond Duality: A Call for a Compassionate Revolution

Excerpt of book by Sylvia Clute © 2009
(Hampton Roads Publishing, May 2010)

Chapter Two

What Do We Mean Justice?

The legal system is not alone in causing deeply felt pain and dysfunction. Many of us feel forced to choose between what our inner voice tells us and what our job requires.

One reason justice so often fails to produce the happy ending we expect is because of the confusion about what the word justice means. Does it mean impartiality? Fairness? Righteousness? Rendering what is due? Getting even? Killing the wrongdoers? Forgiveness? Without a clear definition, authority, decorum and technicalities can provide form masquerading as substance, permitting us to conveniently mold the term justice to justify the end we wish to achieve.

Our mixed beliefs about justice don’t come solely from the legal system. We learn such lessons many times each day without ever realizing it. Often in movies, on television and in video games, we see justice in the so-called good people attacking the presumed bad people, not realizing the good people and the bad people are doing the same thing—attacking and killing their enemies. The point is to make the bad people hurt as much as the good people feel they have been hurt. A lose-lose situation for all is deemed a win for the good.

When we declare, “We want justice!” it is often coded language for a forceful attack, getting even, in which two wrongs are needed to make things right. But those whom we harm often see us as guilty, in need of correction, or evil. In their eyes, the harm they inflict is justified. When they seek their next “win,” another round of losing commences. We complain bitterly about the harm done by others, while justifying the harm done by us. It’s as if we say, “Our killing is good; it’s only theirs that is bad.” When we fail to perceive as others perceive, how well equipped are we to judge their actions, especially when our own perception is clouded by vengeance, misunderstanding, or deceit?

When I entered law school in 1970, I was told I would be learning the best legal system in the world. One exercise law students engage in is practicing legal arguments in what is called moot court. An especially memorable lesson about justice came when I first practiced my role as an attorney before a panel of moot court judges. As part of my argument, I allowed that there was some merit to my opponent’s argument—because there was—but I contended that my client should win since the law was on our side. In the critique that followed, the chief judge shook his finger and said, “You never concede anything; you go for the jugular.” Justice must be related to conceding nothing, I concluded.

When I opened my law practice, I endeavored to be a tough attorney, conceding nothing so my clients would win, which meant making their adversaries lose. When I was lucky, I was able to devise a shrewd attack that caught the opposing attorney off guard, thus enhancing our chances of winning. I built a successful practice this way.

Before I share some of my lessons learned in the legal system, it may be helpful to explain something that perhaps is not obvious. Our legal system can be viewed as having two primary functions. One function is to define how we are to order our relationships and guide our conduct in society. This is done through the passing of laws and regulations that set out the rules we are to follow. The other function comes into play when the first part is not working, when the rules are violated, crimes are committed, or people are hurt. Having the courts deal with such breakdowns is meant to keep people from resorting to self-help by taking the law into their own hands.

The part of the legal system that deals with how things are to operate works well. One example is the orderly processes we have for recording and transferring property ownership through sales, leases, wills, foreclosures, and a multitude of other ways. The laws and regulations for traffic control and safety at the local, state, and federal levels are another example, among many. This side of the legal system can rightfully serve as a model that other countries or cultures would do well to copy.

In the minds of many people, the part of the legal system that deals with breakdowns is where justice is dispensed. If a crime has been committed, the criminal courts handle the matter. In a dispute between individuals or business entities, the civil courts have jurisdiction.

My practice dealt with litigation among individuals in the civil division of the court system. As the judge or jury determines who is to blame and what will be done about it, giving the parties little say in the outcome, my first concern was telling my client’s story as convincingly as possible. Building the best story is made respectable by calling it “the winning theory of the case.” Clients would come in, describe the events that had led them to seek my help, and out of what they told me, I would select the facts that supported my winning theory. This usually meant presenting the story in a way that made my client appear to be the innocent or good person in the dispute, namely, the victim, and our adversary the guilty or bad one who had wrongfully victimized my client.

Ultimately, “the court chooses one story over the other in a win-lose ending,”[i] and this is called justice. This unique arrangement requires that trial attorneys be trained to be good storytellers, even when the facts make it an uphill battle. They must shape the facts to fit their story, and then minimize what is inconsistent.

Litigation replaced dueling with pistols, a self-help mode of resolving disputes. Neither was designed to make truth the primary concern. Although each witness is sworn to tell the truth, the truth is set aside when other considerations are more important. In fact, telling the truth about the heart of the case—whether you committed the wrong or not—is discouraged. As in Daudi’s case, being truthful about a wrong you committed or a mistake you made is deemed an admission against interest. As such honesty helps the opponent and can be used to hasten one’s defeat or increase the punishment, attorneys readily admonish their clients not to say things like “I’m sorry” or “I made a mistake.” In criminal cases, the Fifth Amendment protects one from having to tell the truth if it is self-incriminating. To avoid costly blunders, the attorneys often control what is said by speaking for their clients. Few seem to recognize that a rule that punishes the realization and acceptance of personal responsibility destroys the trust necessary for all parties involved to heal and move on.

In this winner-takes-all system, the stakes are so high that the truth can easily become secondary to winning—for the clients as well as for the attorneys. Even when there is no intent to lie, defining the issues as a conflict to be won or lost makes it hard to see beyond this limited do-­or-die perspective. Any common ground that may exist is discounted, for making a concession is to lose. Emphasis is often placed on a particular part of the story, a single act, or the last episode. Looking at a continuous, coherent picture is not built into the process, so the underlying cause of the dispute is rarely addressed. Our adversarial legal system often stands in the way of discovering the whole truth, and it was never designed to reconcile the parties.

In this litigation process, what does it mean to win? You usually get money, if you survive the appeals and can collect it. In some civil cases, the plaintiff is awarded a judgment that exceeds the total value of the defendant’s assets, and still the person harmed is far from made whole. If you lose, at best you owe little; at worst you are deeply in debt. If you lose in a divorce, it can mean losing custody of children, losing a home or a business.

An attorney told me that once he objected to the testimony being offered by a witness in a divorce case on the grounds the witness was lying. The judge retorted, “This is a divorce suit. Everyone lies.” When the stakes are as high as they are in cases involving families, we must expect people to rationalize that losing would be a greater injustice than telling a lie.

What is most important for many is being deemed right, whatever the cost. What some are willing to sacrifice to win in this system is sometimes startling. The children won in custody battles, for example, are often emotionally harmed by the process, and their rate of juvenile delinquency exceeds the norm.[ii] Many jurisdictions have outlawed cock fighting, but what we do in custody litigation is sometimes not all that different. The fight begins, the blood spills, and the so-called winner gets the prize, all with little regard for the pain inflicted in the process.

Because the decision maker in this tug-of-war is a third party—a judge or jury, rather than the parties themselves—dialogue and mutual consent are set aside as goals. Yet consider how unreliable judgment of another’s acts can be in any situation. How many times have you judged another and later discovered you were wrong? How many more times were you wrong and didn’t realize it? How many wrong decisions do our judges and juries make every day in courtrooms around the nation? It took a long time for me to ask myself if a judge or jury, hearing bits and pieces of contorted evidence, is the best way to judge guilt and innocence, much less make decisions about life and death.

About 130 death sentences have been commuted since 1973 because evidence later proved these people were innocent.[iii] This alone is reason to think twice about how effectively our system separates truth from lies. Is the prosecutor’s win more important than the truth about the guilt of the defendant? In many of these 130 cases, the answer was yes. Sam Millsap, a former Texas prosecutor, now speaks openly of having sent an innocent man to death by presenting weak evidence that later proved to be false.[iv]

For years I didn’t ask if this us-versus-them system was a good way to heal the underlying breach or dispute. That was not the intended goal. I was hired to win. Not only is the healing of wounds irrelevant, more wounding is often the result. My clients sought what the system offered, and for many years I did not know enough to ask if this was the model of justice they truly wanted.

When I intentionally presented evidence in court to make my client look good and the adversary look bad, I thought I was meeting my ethical duty to provide zealous representation. While some states have removed the zealous standard from their code of ethics, the underlying problem remains the same. Witnesses swear to tell the whole truth, but when this casts the client in a bad light, I faced a conflict the legal profession discretely overlooks—winning and the whole truth are at odds. Eventually I began to see that nothing I was trained to do helped address the underlying breach in their relationships. Instead, what I did made it worse

Facing the Inconsistencies

Despite the competing currents and the mountain of rules about how to navigate these uncertain waters, I usually won my cases. When I did, it was easy to attribute the win to justice. When I lost, it caused me to reflect more deeply on what justice entails. Perhaps I should explain that, being one of the earliest female attorneys to try civil cases in my city, when I began, all the judges were men. I often represented women in suits against men who were part of the establishment. For these clients, in that era, justice may have been an uphill battle from the start.

A case I handled in 1976, early in my career, involved a woman who was the deputy warden in charge of security at the maximum security prison in Richmond, Virginia, when she applied for the job of prison warden. She said that her superior in the Department of Corrections who interviewed her for the job, a man whom she had known for years, said to her, “Sue, you must think you don’t need a penis to do this job.” When a man with significantly fewer qualifications was given the job, she retained me to file a suit for sex discrimination in federal court.

At the trial, the man who had made the incriminating statement testified that my client had misunderstood. What he claimed he actually said was, “Sue, just think, you don’t need a penis to do this job!” We won at the trial level, but lost on appeal. I could understand the logic used to reverse the lower court’s decision, namely, that the Department of Corrections had broad discretion in who it could hire for this job. But how was I to tell my client that such logic was justice in her case? We both had our doubts.

In another case, one of my divorce cases, the husband was having affairs with several women. This made no difference in the way the trial court divided the marital property, even though the wife, my client, was a homemaker and had been placed in a precarious financial position by the divorce. The court held that the husband’s infidelity was not a factor in deciding how the marital property was divided, because we had offered no evidence that the husband had spent marital funds on his various affairs.

Prior to this decision, I had seen many wives who were punished economically—denied alimony and property—because they were the guilty party in the marital breakdown. I had a hard time believing the court would have found no connection between fault and property division had the wife been who was having multiple affairs. To me, this looked like a biased decision. But like it or not, my client had to adjust her life to the ruling.

I handled two separate medical malpractice suits against the same doctor, a family practitioner who had a penchant for fondling the breasts of his female patients and calling it a thorough chest exam. Many women had complained about having been sexually violated by this doctor and the Board of Medicine had investigated him multiple times. These complaints had, with few exceptions, been routinely dismissed on the grounds that these women didn’t understand all that a good physical exam involved.

In the first trial, the defendant’s expert witness, also a practicing physician, was confident in his testimony about the innocence of the defendant. He described what a proper chest exam involved and assured the jury that was precisely what the defendant had done. We lost that case.

I felt the expert witness was an honest professional who believed the defendant had been subjected to a frivolous claim. I suspected he knew nothing about the many women who had previously filed complaints against the defendant. When I took the expert’s discovery deposition in the second case, I had the records of the Board of Medicine available and reviewed each charge with him. He confirmed he had had no knowledge of any of the prior charges.

When this expert again testified on behalf of the defendant in the second trial, his testimony had a different tone. He testified that if there was any cupping of the breast that resembled fondling, that would be improper. This time we won. I credited it to the fact I had been thorough enough to inform the defendant’s expert witness about the history of complaints, while the defendant’s attorneys hoped to again keep this larger set of facts out of the equation. Does justice hinge on the attorneys’ success at hiding their clients’ faults, or bringing such faults to light? By this time, doubt had begun to creep in to my mind about how much justice this system produced.

In my role as an attorney, a sexual abuse case that I handled in the 1990s caused me the most distress. I was representing a teenage girl in a suit against her father, who had abused her over a period of years. The trial was several days away, and I was preparing my client to testify when she turned to me and said, “I don’t want any of this. I just want my dad without the bad stuff going on.”

I froze. What would happen to my contingent fee if she had her wish? Because I was paid only if her father lost and a money judgment was awarded to my client, I would lose my chance to be compensated for the hundred hours I had put into her case. As I realized how quickly my self-interest had come to the fore, something inside me reversed course. Our system is set up so that a conflict between the attorney and the client always lurks in the background. With an unexpected turn of events, the attorney can stealthily choose who has to lose. The pageant of conflicts and hierarchies of winners and losers that I lived with for years paraded in my mind. After that case, walking into court never felt as good.

One of the last cases I tried involved alleged legal malpractice on the part of an attorney who had engaged in sex with his client. The attorney had represented the client in a federal sexual harassment suit against a former supervisor whom the client claimed had raped her. The night before the attorney and client were to appear in federal court for a settlement conference with the judge, they had worked late into the night in the attorney’s conference room preparing for that meeting. The attorney and client ended up having sex on the attorney’s conference room floor. The client was in treatment and on medication for various mental problems when the incident took place.

As the client’s original sexual harassment case involved alleged sex with her supervisor, if the case went to trial, the client’s sexual history was fair game for opposing counsel to explore. Her sexual history now included sex with her attorney. To say it was in the attorney’s interest that the case settle is an understatement. At the settlement conference the morning after the sexual encounter, the attorney had pressured his client to settle. She did, but felt she did so under duress, and that she had not had a fair trial of her case against her former supervisor.

In the legal malpractice suit that I filed on her behalf against the attorney, the attorney admitted to having had sex with his client. He said she had forced him to do it, including oral sex, because he was afraid of what she would do if he refused—he thought that might have damaged her psyche even more. While preparing for the case, my client said any number of times she would feel much better if the attorney would just say he was sorry. In fact, a close friendship, more than a mere attorney-client relationship, had developed between them. Losing that connection left a wound that litigation could not heal.

As the trial judge announced his decision in favor of the attorney, he first acknowledged that what the attorney had done was worse than reprehensible. He explained that he was nonetheless ruling in favor of the attorney because having sex with his client was not what the attorney had been hired for. As the attorney had not been practicing law when he had sex with his client on his conference room floor, the attorney’s outrageous actions did not constitute legal malpractice.

I knew such finely tuned, easily self-serving distinctions were not justice. With a heavy heart, I told my client we operate in a deeply flawed system. It is a fear-based, fragmented system of rigid mental concepts, often justified merely by virtue of the fact that this is how it has always been done. Separation among individuals and between communities is reinforced at every turn. Not only the court-defined guilty pay for this form of justice—we all pay. I no longer wanted to be a part of it.

A Broken System

In our system of institutionalized justice, people learn to accept justice as vengeance, unaware of the price they must pay to get what they want. The brokenness is widespread. Depression among attorneys exceeds that of any other profession, alcohol abuse is much higher than among the general population,[v] and the rate of suicide may also exceed that of any other profession or vocation.[vi] Why would so many attorneys choose to take their life rather than continue to be part of this punitive model of justice? Being continuously forced to take stands that are counter to one’s inner moral compass regarding healthy relationships makes for a highly unhappy work environment.

For a long time I practiced law without questioning the system’s internal contradictions and inconsistencies. Eventually, I saw how the sense of prestige and power my legal career seemed to give me hid a deeper truth—that the win-lose approach in the courtroom causes everyone to lose in one way or another. Had they known it was possible, many of my clients would have preferred healing and restoration of their broken relationships over the vindication and revenge that the legal system offered them.

The legal system is not alone in causing deeply felt pain and dysfunction. Many of us feel forced to choose between what our inner voice tells us and what our job requires. Despite our efforts to keep it out of sight and out of mind, our financial structures, religious institutions, educational system, business practices, health care, and politics are all experiencing breakdown similar to that happening in the legal arena. When we look deeper, we start to see common elements that permeate the whole.

Sylvia Clute holds an MA in Public Administration from the Harvard Kennedy School of Government, a Juris Doctor from Boston University School of Law, and an MA in Public Administration from the University of California at Berkeley. After several years as a trial attorney, she became disillusioned with the legal system and began her search for a better way. She founded, led and served as an advisor to numerous community and statewide initiatives. A pioneer in legal reform, she spearheaded changes in Virginia's laws relating to women and children. Beyond Vengeance, Beyond Dualityis her first work of nonfiction. She lives with her family in Richmond, Virginia. www.sylviaclute.com.

The attachment is a press release for Clute's book.

[Footnotes i-vi: See the book.]