Old Lady Lawyer: What Is Wrong With Dueling?

In his 2015 Year-End Report on the Federal Judiciary, Chief Justice John Roberts, Jr. spends several pages discussing the demise of dueling in the 19^th century and how it eventually gave way to non-violent dispute resolution through the courts. The Chief Justice points out that it is government’s responsibility to “…provide tribunals for the peaceful resolution of all manner of disputes.”

Peaceful? What about a deposition where one counsel or the other or both, holler and scream and carry on, tossing papers, bullying, displaying contempt and downright nastiness, one or both lawyers walking out in a huff after saying very cross words at each other and their respective clients. While federal courts are fundamentally sound, the Chief Justice says, in many cases civil litigation has “…become too expensive, time-consuming, and contentious, inhibiting effective access to the courts.” Contentious? See above.

The Chief Justice discusses a booklet published in 1838 by a former governor of South Carolina, John Lyde Wilson, entitled “The Code of Honor; or Rules for the Government of Principals and Seconds in Duelling.” The booklet sets forth the steps to be taken in an effort to resolve the dispute beforehand, including such actions as “apology and compromise,” which today seem to be (you should excuse the expression) fighting words. By 1859, the Chief Justice observes, eighteen of the 33 States of the Union had abolished this method of dispute resolution.

That started me thinking (no snarky comments here, please) as to whether dueling should be reconsidered as a method of dispute resolution. The Chief Justice’s comments in his year-end report discuss amendments to the Federal Rules of Civil Procedure which, he hopes, as do others, will streamline the handling of cases, limit discovery abuses, and process cases more efficiently so that future conduct of civil trials in the federal courts will benefit.

I’m not going to discuss the amendments here, as that’s most appropriately a subject for discussion elsewhere. However, I do think that returning to dueling may have its charms. Consider these potential benefits:

1. There’s no appeal from a duel. Trying to figure out whether and when an appeal can be taken (or does this require a writ?) will be over. Clients will not have to worry about a higher court reversing the trial court decision and sending it back where it came from “with instructions.” There will be no need for the client to budget for appellate costs. Appellate practices will disappear.

2. If dueling returns, there would undoubtedly be limits on discovery. No thousands of pages of documents to review, no privilege logs would be needed, no need for litigation holds and the search for every conceivable communication in whatever form. Also, there would be no need to draft or respond to interrogatories and/or requests for admission, which, in many cases, don’t advance the case, but which do provide much needed work for newer lawyers. In fact, the only discovery that might be needed is to exchange information about the weapon of choice to be used in a duel. Pistols v. revolvers? Rifles v. semi-automatics? Do you think that might prompt serious discussions of settlement?

3. Reintroduction of dueling using guns, as opposed to the more “civilized” use of swords, would delight those who believe that the Second Amendment gives citizens the right to bear arms. (I’m not taking a position one way or the other on the Amendment, but only as it would apply to dueling.)

I wonder if the term “second chair” arose from the use of the term “second” in dueling. Just as a second in a duel attends a party who is dueling, makes sure the rules are followed and tries to resolve the matter, so does the “second chair” in litigation attend the first chair. (The other responsibilities would probably be on a case by case basis.) There would be no need for second chairs or first chairs for litigation.

Yes, as a mediator, I would probably be out of a job if the matter fails to resolve before the duel. Wait! We mediators could ride the circuit, so to speak, attending duels in last-ditch efforts at resolution. Job creation here.

While I think that many lawyers are sick and tired of all the game-playing done in the name of “advancing the ball” in litigation, I wonder if it’s a case of “do as I say, not as I do.” Chief Justice Roberts says that “he cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life [sic] wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.”

I get that malpractice concerns loom large in the “no stone unturned” theory, and so many lawyers, and rightly so, figure that the more they do, the less likely they are to be sued by an unhappy client. We all know that even winning clients are often dissatisfied.

There has to be some way to balance legitimately based need versus want in litigation. If the goal is, as Chief Justice Roberts says is to place a “…premium on the public’s interest in speedy, fair, and efficient justice,” then dueling might just be the ticket.

Now, the only question is who duels? The parties or their respective attorneys? Whose honor is more at stake?

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Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at [email protected].