The Attorney as Duellist's Friend
Posted: 5 Apr 2001
Lawyers help clients resolve their disputes by advocating in an adjudicative forum or by negotiating private settlements. Because courts have become more active in encouraging settlement and the costs and risks of litigation are so high, lawyers are increasingly called upon to pursue both methods of resolution simultaneously. When doing so, they are faced with two seemingly contradictory behavioral models. One model, the zealous advocate, is enshrined in the professional standards and reinforced by economic and psychological rewards for winning. The other model, the peacemaker, is promoted by the bench and bar through the professionalism and alternative dispute resolution movements. A close examination of dueling in 19th century America exposes an institution that, like modern litigation, had incorporated mechanisms to encourage settlement. The behavior of seconds under the prevailing norms of dueling reveals an alternative role model in which confrontation and conciliation can be pursued simultaneously and without contradiction. Four duels from the period provide ample evidence of this possibility. The article concludes by placing the seconds' model in the context of modern lawyering.
JEL Classification: K10, K19, K40, K41, K42, K49, Z13
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