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A creature of instruction

By: Martienz Labuschagne 2014-08-29 12:50

It is the natural state of thing that all professions and businesses have their detractors. One just needs to peruse the blogs, newspaper columns and reader’s letters to see the volumes of bile spewed out against this and that product or service. Whether any of these complaints have merit is of course another debate.

But of all the businesses and professions in the country (maybe the world) there is probably none that has acquired such contempt from the general public than the legal profession. This can be seen in the abundance of anti-lawyer jokes which are now part of South African folklore. In comparison, how many jokes do you know about builders? Or estate agents? Or call centre agents?

Probably none.

Certainly the legal profession has its fraudsters, but as an ex-official who dealt with legal ethics I can attest thereto that attorneys are by no means more crooked than other professions. Or even than the general public, for that matter. Consider a bit the daily reports in newspapers about criminal offences. In how many of those are attorneys the culprits and in how many are in fact just John Public?

Besides the view that attorneys are criminal (and various other unsavoury traits which is too much for me to discuss in this article), there is also the general view that attorneys are mean.

When one individual wants to threaten another individual they will say something like ‘you will hear from my lawyer!’ This immediately summons images of legal letters and court proceedings where after the poor victim will be left bankrupt and destitute.

In the eyes of the public is the law is mean and equally so the practitioners of the law.

What the public, however, lose sight of is that behind an attorney stands a client who instructs an attorney. In the legal fraternity, a lawyer is defined as a ‘creature of instruction’, meaning they act out instructions received from their clients. The creature of instruction will advise what a client can do, but the client will decide what he wants to do. Thereafter the legal representative has his instructions and he has to execute these instructions to the best of his abilities. Failure to do so will land him in front of a disciplinary tribunal at the Law Society. Many times the public misattribute the nastiness of a party to an attorney, while in reality it is that of the person who has employed the attorney.

To put it otherwise, an attorney is the conduit of the intentions – good or bad – of a client.  Granted, an attorney advises his client on the law and the probabilities for success of a case, but at the end of the day it is the client who chooses down which path he or she wants to go.  

To put it in colloquial short and simple: behind a mean attorney stands a mean client.

And believe me: there are mean people in our society!

You get people who cannot resolve their personal issues without turning to litigation. These are people who will tell you that a case is a matter of ‘principle’. And with principles I do not mean the good kind such as do not steal, do not cheat your wife or do not drop your sweets papers on the pavement. No. Their idea of ‘principles’ is actually short hand for revenge. For instance, the archetypical scorned spouse who wants to ‘sue him / her for everything he / she has got.” They end up with huge attorney’s bills, hurt children (because they are usually the pawns in the war) and bruised egos. The latter is due to the fact that they regularly forget that their opponents also have some dirty laundry of theirs to wash in public.

At the end of the day, vengeance is mighty expensive and the satisfaction is far less than one thinks. In most cases it is better to walk away from something that is not worth winning.

I have noticed that some individuals are, as I call them, conflict magnets. Wherever they land up they get embroiled in some nasty dispute with someone. It can be anybody; their neighbours, their own children, their employers, their ministers; the newspapers. Anybody can be a victim of their (mostly irrational) ire. But they do not need lawyers, they need professional psychiatric help. Unfortunately, they usually also lack insight into their own problems and no amount of reasoning can convince them of their own shortcomings.

Please do not misunderstand me, I am not declaring that there are no genuine cases where an individual truly suffers an injury at the hands of another or an organisation. Still, the first step would be to mediate, before resorting to litigation. If the opponent refuses to come to the party, then, of course, litigation is the only option. Just for interest’s sake, I must also mention that the vast majority of civil cases are settled on the proverbial steps of the court building. Matters rarely go on trial. Bear this in mind when you consider litigation: it will in any event most likely end up in a settlement.

This reminds me of the advice of an ancient sage who said that should you be on your way to court with your opponent, to settle your case. Otherwise you might lose it and pay a dear price for it.

Faulting attorneys for taking cases of people with obvious character defects is bitterly, bitterly unfair. Civil litigation is many attorneys’ bread and butter, without it they will have to close their doors and lay off staff. And trust me, the competition for work in the legal profession is tough. In the old Transvaal Province (compromising Gauteng, North-West Province, Mpumalanga and Limpopo) there are almost 10 000 attorneys, all desperately looking for work. If you are not employed at a large firm, you cannot afford to turn down work. It will be fatal.

In summary, what I want to get at, is that the reason why there are mean attorneys, is because there are mean clients. Attributing this meanness to attorneys simply is not fair. Start seeing the mean characters (ab)using the legal system and you will understand what is really happening.

Helping dysfunctional people having insight into their personal problems may in the end be the best legal assistance the legal system can render and will go a long way in reducing the vindictiveness in our society.

Besides, it will also be easier on everyone’s pockets.

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