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Thursday, January 24, 2013

Untidy Transactional Processes

If you were a lawyer, would you prefer to prosecute or defend? Would you prosecute someone you felt was innocent? Defend someone you thought was guilty? (Serendipity Bible 10th Anniversary Edition, page 1077).

I would suspect that the ideal lawyer would be someone who could perform either role passionately – that of defense or prosecution. Not only this, but someone who could effectively play devil's advocate if necessary either in defense or prosecution – could powerfully prosecute the innocent and defend the guilty. Our legal system which guarantees legal representation really requires this of lawyers. To a large extent, the sense of justice requires much more than objectivity. It requires passionate subjectivity. We have to believe in theory and practice that everyone – even the state – requires a full throttle presentation of their case. We do not expect cold, judicial objectivity from advocates but rather passion. A defense or prosecuting attorney who struggles too hard to be coolly fair, objective, and judicial simply does not understand the role they are to play to effectuate justice through process. We do not expect attorneys to be primarily scientists but salesmen. This said, it should be recognized that a jury expects to have their cake and eat it too. In other words, a prosecutor or a defense attorney that showed no regard for objectivity in seeking the discovery of the facts of the case would lose credibility. While we expect an attorney (like a salesman) to be biased, we will fault him if he seems giddy and without his feet planted firmly on the ground. 

This no doubt is why we frequently turn to lawyers to fill the roles of politicians. Like a legal representative, we do not expect our political advocates to be coolly objective and dispassionate in all matters. We expect to see some passion, some emotion. We must ask; What kind of constituents would choose a cold fish for a representative? My guess is a citadel of intellectuals who are unwilling and unable to accept life on realistic terms - people unwilling to accept their own humanity with its inherent untidy transactional processes.

And of course I speak not only of lawyers, but of all of us. Unless we are delusional and phony even to ourselves, we cannot believe that we approach life disinterestedly. We must intentionally recognize our biases and seek helpful – yet possible and practical - ways to adjudicate them.

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