John Sturrock’s article, “Breaking the cycle of blame needs someone to have the courage to accept responsibility” (Friends of The Scotsman, 2 December), contains many perceptive points pertaining to the psychology of hostility that nurtures entrenched positions, particularly in the context of litigation.
He alluded to a way out of the hostility: “What is often needed is to break the cycle. That can happen when someone – client or solicitor – is humble enough and brave enough to acknowledge responsibility.” He cites an experience from ten years earlier: “A senior partner in a large law firm, whose letters to his opposite number had apparently seriously inflamed both the situation and the claimant, said to the claimant: ‘I am truly sorry Mrs X, that the words in my letter had this impact on you…’”
However, it is the conduct of lawyers before the stage of litigation that is missing from Mr Sturrock’s article.
Frequently the “advice” on offer to the client is based on untenable opinions, a shaky grasp of the law and a fundamentally flawed interpretation of how the facts of the case impinge on the relevant legislation.
Many clients would contend that the performance of their lawyers (in and out of court) is aptly described by Voltaire’s depiction of metaphysical writers: they “are like minuet dancers; who being dressed to the greatest advantage, make a couple of bows, move through the room in the finest attitudes, display all their graces, are in continual motion without advancing a step, and finish at the identical point from which they set out”.
That quality of service is frequently (but not exclusively) on offer from the (self-perceived) “higher nobility” of Scotland’s legal fraternity: advocates and QCs. Clients can admire that kind of virtuosity in the abstract, but in the context of their case, they often feel obliged to alert their lawyers to the fact that graceful incoherence is not always the best route to success in litigation.
That modest exercise in the art of helping their lawyers can expose the clients to the full venom of the affronted legal mind: incoherent indignation, barn-dance tantrums and, in the absence of a fulsome apology, the arrogant abandonment of representation.
Mr Sturrock, in his capacity as a mediator, will need all the help he can get from the outer reaches of neuroscience to cope with that kind of mindset.