And Without Further Ado...Ladies and Gentlemen, Mr. Thomas D. Barton

If you'll recall it was way back in early March when I had my interview with Professor Barton. This was before COVID-19 was taken seriously (which, by me, it still isn't but that's a WHOLE 'nother blog). I waited to post his interview last, due to the amount of insight and information I received from this incredibly intelligent man. This was early on in my Project where I thought I would walk into the interview prepared to just shame the hell outta someone for being so narrow-minded as to no know anything of dialogic argumentation.

Enter one, Thomas D. Barton..... Here are the titles of just a few of his publications:

"Preventive Law and Problem Solving: Lawyering for the Future"

"Symposium Introduction: Advancing Intellectual Property Goals Through Prevention and Alternative Dispute Resolution"

"A Paradigm Shift in Legal Thinking, A Proactive Approach to Contracting and Law"

"Therapeutic Jurisprudence, Preventive Law, and Creative Problem Solving: An Essay on Harnessing Emotion and Human Connection"

I needed to do my homework. Unfortunately we weren't very far along in the class so I didn't have a decent grasp on the theory which was to be taught to us yet. Not wanting to look like a complete A-hole I spoke to Professor Bush asking her if she could recommend some chapters in the book I could skip ahead to better familiarize myself with the topic at hand. "Let me get back to you on that one." was her response. Thanks, Babs! I'll just go out there and look stupid, no problem.

You can read all about my harrowing journey to get to Professor Barton in my blog, "Rainy Days and Mondays.."

You're probably going to want to go ahead and do that now. That's ok, I'll wait. Just hit the "Back" button on your browser and you might have to scroll down a bit to find it but you'll see it. Just come back here when you're done.

Go ahead.

Seriously.

Yup....

I know, RIGHT!?!? Such a pain to even get to his office! Anyway, he arrives a few moments later and we step into his office and exchange pleasantries:

"Charmed, charm, charming" I say

"Flattered, flatter, flattering" he says

Actually I did learn a bit of info during the pleasantries. I remarked that I liked his Theo glasses and that the entire faculty at California Western School of Law seemed to have great taste in eyewear. He was surprised I recognized them. (Cuz I am just soooooo bougey like that. No, I worked in eyewear for 15 years and I'm fairly certain the only place in San Diego to get Theo is Urban Optiks Optometry where I worked at for 5 years).

Yes, I COULD make this a little bit more about myself, thank you.

But I'm not going to...

The Interview

"Well let me ask you this..." said Barton after I told him my thesis statement "what is your definition of dialogic argumentation?"

You'll recall earlier my professor shoving me out into this interview naked, alone and shivering. "I guess I see dialogic argumentation as a situation when you go into an argument instead of the mentality that your idea is the right one, going into it as if the other person's idea is correct but you don't understand it and need it explained to you."

He paused for a moment and said, "Yes, I guess that's about right." OK, I did do a little homework.

Interesting thing about professors....they LOVE to talk. Once I had proven myself worthy enough to be in his classroom, he lectured like he was in a room of 50 students.

Right off the bat Barton assures me that of dialogic argumentation has its place in law and it is ever pervasive (even if it doesn't get all the glamor as adversarial)

"Nathan" he said "only 5% of all lawsuits ever make it to trial." I indicated I was aware of the statistic. "So what do you think happens to the other 95%? Sure, some of them get discarded, their parties no longer wishing to participate in the legal system, but most do get settled, negotiated, or mediated out of the courtroom."

I mulled it over, he was right. He gave me a look as if to say "I answered your question, I suppose this interview is over." I looked back at him and realized the roles I assumed we were playing were not the same roles he had in his mind. We were not interviewer and interviewee. We were teacher and pupil. Fine.

"Then to rephrase it," I said "I would ask, 'What is dialogic argumentation's role within the legal system and is it feasible to replace adversarial argumentation with it as the standard in the courtroom?'"

He seemed very pleased with my answer remarking it's a "deep flaw in our legal system perpetuated by deeply flawed organization." To uncover the fundamental issues plaguing our legal system one needs to go back to the beginning of our (as Americans) education. As pervasive as the law was represented in our media (Law and Order, Matlock, Perry Mason, etc.)

none of us ever took a single class of it in grade school through high school. We had civics, to be sure, where we learned about the American government, but never a criminal procedures course, or a class on Immigration Law. When you compare that to other professions, say physicians, it's a different story. We've all taken health classes before. We've all taken more science and math classes that we know what to do with. And yet, here we are as a society in which 2 out of 3 of us will be involved somehow in a legal issue in our lifetimes and yet we aren't even taught the basic steps of a lawsuit? Most of that information is kept from us even in undergraduate curriculum.

"Most students." Barton chuckled "don't know what a plaintiff is coming into their first year of law school. I'm guessing those heading into their first year of med school are going to know the names and general locations of all the major organs though."

Interesting point. Why, though? Why in a litigious society such as ours some school administrator didn't think to offer a little bit of law into the curriculum?

"Actually," Barton said to me, "You are the perfect person to answer that question."

(See how it's not my fault that it always comes back to me)

He continued, "You were the pro se plaintiff in your lawsuit, correct?"

* * *

Pro se: one who represents themselves in a lawsuit

Plaintiff: the initiating party in a lawsuit; the side that claims they have been wronged

Barton is speaking in regards to a civil lawsuit I initiated against another person and won. We had discussed this previously.

* * *

"What was the most challenging part of the whole ordeal?" he asked

I thought for a moment, "Procedure." I answered "Knowing what and where to file paperwork, what to say in the courtroom."

"Exactly!" Barton exclaimed excitedly. "And what about the substantive aspect of it? The actual laws themselves?"

"That part wasn't terrible once you deciphered the legalese aspect of it." I answered.

"Yes, yes, yes, yes!" Barton banged his hand repeatedly on his desk reminiscent of an Herbal Essences commercial. "All these superfluous rules that those in power have made over the

years to convolute the system, to make it that much more challenging all in order to disguise the fact that the practice of law...is not that difficult."

This is why, according to Barton, is that you don't find any law classes in high school or undergrad college courses. If you leave the subject of law open, exposed and readily accessible it's not going to take anyone too long to realize that it's not that difficult to comprehend.

"But law school?" I interjected "That's supposed to be incredibly difficult."

"Oh, it is" replied Barton "The first year of law school you are continuously bombarded with information you never had access to in pretty much a whole new language. It's so much information that you aren't able to differentiate if the difficulty lies within the substantive or procedural areas of the law." I, Barton claims, am, or will be, in a very unique position having been someone who has engaged in the practice of law both with and without legal training.

"You'll see," he said "people will want to speak to you"

The American Bar Association

I admit, I love me a good conspiracy. All this talk of "they" led me to ask, "Who? Who doesn't want us to know how easy law is?"

Barton looked at me, almost annoyed that I would ask something that he deemed a rhetorical question. "The A.B.A., of course."

The American Bar Association (ABA) was formed in 1878 in response to deficiencies in the education and quality of American attorneys. For nearly a century in the United States, becoming an attorney meant apprenticeship for however many years and eventually one was deemed "worthy" enough to practice law. (This is a route that our 16th president, Abraham Lincoln took to become an attorney and a practice that is still recognized in California to this very day) There was no universal standard; national code of ethics, or a centralized organization to serve as a forum for discussion. The ABA was formed with the express goal to set educational requirements for bar membership. It was a voluntary association and membership meant acquiring the necessary Juris degree through institutions specifically that the ABA had approved and accredited. Beginning in the 1920’s the ABA began integrating its requirement for bar membership through court rules and statutes citing inherent powers of the court, thereby obtaining more power and influence over the practice of law. With this integration the ABA set into place their own self–mandated standards of those who should practice law leaving little room for any deviation. As is the case in so many "associations" in the early development of this country, membership was restricted only to men. White men. Rich white men. It wasn't difficult at the time to ban women and minorities from these schools all was left now was to ensure tuition got jacked up so high that only the elite could afford to attend. A majority of the states in the Union now have an integrated (also known as “mandatory” or “unified”) bar. Which was once a voluntary association, is now mandatory in these states and have become a government granted monopoly.

The word monopoly doesn't even begin to describe what this private association is. The ABA has complete control over the entire judicial branch of this country. Say, for instance, you wish to bring a lawsuit against the ABA for violations of the Sixth Amendment of the Constitution on the grounds that "assistance of counsel" should not be limited only to ABA certified attorneys. In order to take the case to court you'd have to find an ABA certified attorney who would be against another ABA certified attorney from which the ABA would have nearly an unlimited selection to choose from. You would ultimately plead your case before a judge who, again, is ABA certified.

Controlling who is authorized to practice law has also gave then the power to control who teaches law and as previously covered, they're not letting that information out easily. If you, the reader, get anything out of this blog, this is the takeaway: The reason why our understanding of law isn't freely accessible to all, why legal assistance is outside of the financial arms reach of most Americans, why it is based upon an adversarial system that has long been known to be inaccurate, ineffective and detrimental in most cases is this: straight men have the need to whip it out and see who has the bigger dick.

One of the really amazing things about this country is that no matter the amount of resources you have at your disposal, how rich you are, or how powerful you may be; you will always be subject to the whim of the people.

Integration in Our Law Schools ... Not Just For 1960's Alabama Anymore.

A student's first real learning experience with the law occurs in law school. That's a scary thought when you think about it according to Barton. In 3 years we have to have these kids coming in with no knowledge of the legal system to getting them ready to prosecute and sentence someone to death. "Theoretically," he adds. Those 3 years are spent prepping students to take the State Bar Exam. Of which, the California Bar Exam is notoriously the most difficult to pass. It is only upon passage of this exam is one allowed to practice law. If you don't pass, well tough shit, you just spent $150,000 on nothing.

"The key" says Barton "to changing this system, is from within."

I understand. Of course, shape the young minds of the law students today in order to produce the novel thinking lawyers of tomorrow. But what of the 3 year deadline? Not a lot of wiggle room to take touchy-feely elective kumbaya courses that play no role when you have a juris doctorate degree to obtain, a 3 days bar exam to take, and $150,000 to begin paying back.

Integration, is Barton's answer. Acknowledging the need for change beginning with law school students vs. the impracticality of offering a bunch of classes that aren't going to serve much function when taking the bar exam, Barton has come up with an ingenious way to integrate these alternative theories into existing curriculum.

Barton explains how legal issues are resolved by one of three broad legal theories, or "modes", and each of these modes correspond to a particular "tense" (past, present, or future). This can be through judgment, when an authoritative decision pronounced by an empowered third party concerning the legal significance of past behaviors; through consent, a "present tense" resolution in which the parties to a legal concern resolve it privately by negotiated or mediated agreement; or through prevention, a future-oriented process that designs various types of legal arrangements as to keep legal risks from erupting into injuries or legal liability. And although far more legal problems are resolved consensually or prevented from arising in the first place than are judged in formal litigation most law school classes continue to rely on reported cases, which are primarily past-tense resolutions resulting in judgments.

I. Judgment Mode

The judgment mode for solving legal problems is the use of the case method in legal education. In a typical case, what you are reading is a judgment. The culmination of legal procedures that measure human behavior or institutional arrangements against legal rules or principles. Cases emerge from familiar lawyer skills and strategies: elemental legal analysis applied to factual research, coupled with strong oral and written advocacy from lawyers who seek a winner-take-all solution to the legal problem

II. Consent Mode

In the real world, legal problems are more often than not resolved through familiar forms of alternate resolutions of negotiations or mediations. These approaches are more often than not made outside of the court and rarely make the textbooks since that information is only relevant to the courts if one of the parties fails to perform their half of the bargain.

III. Prevention Mode

Being able to plan for the future and encouraging or designing an environment that is free from legal liability, physical discomfort or injury, and the loss of freedom, friendship, finances, or life opportunities. It seeks to prevent a punishing environment and is illustrated by the use of safely engineered consumer products and safety devices as well as employee sensitivity training and caveats within contracts. The methods used within prevention law can be applied to all personal relationships as well.

A this point I'm finding myself a bit confused and wondering if maybe I need to reel him in to the subject at hand. It sounds like legal theory to me and I fail to see the integration into existing curriculum.

Barton explains that once the students have a general understanding of the 3 modes, they can be applied to most doctrinal teachings. A case will be evaluated as normal using the judgment mode. Then have students apply the consent mode to the case. What could have happened differently had the partied chose a form of mediation and/or negotiations in lieu of litigation?

Then have the students place themselves in a time before whatever incident had led this lawsuit to litigation. What safeguards could have been implemented to prevent this circumstance from even occurring? What you will receive is separate outconmes from the same set of circumstances.

This method will expand the students' minds and make them realize that even within the law there are different outcomes possible and that what you do isn't necessarily mired only in the past. It isn't even necessary to get into the exploration of these different theories of law unless students choose to explore that on their own. Just having the knowledge that every case can be looked at in the past, present, abnd future tense will influence how they work as attorneys in the future.

STORM'S A COMIN'

Change, Barton assures me, is coming. "It's coming because it has to and because the people are demanding it" he informs me. The problems in the legal system have been known now for decades and as much as the stuffy rich white guys have had their chokehold on the judicial branch for nearly a century that grip is lessening. They lack the power and legal backing to prevent women and minorities from attending law school and although tuitions remain high at such institutions such remedies are already in the making. Not only can most Americans not afford an attorney, neither can they afford law school. As a result, law schools will price themselves out of business. Law schools have been steadily lowering their tuition rates in order to attract students. Paralegal courses, which offer equally comprehensive education on substantive law are attracting greater numbers of students. This is, and will surely continue to force the ABA to take a hard look regarding the practice of law.

The people are also demanding change. Divorce rates are on the rise, this is well known. Those that are now divorcing are accustomed to divorce. There parents were divorced and so it is no longer seen as this stigma where it is necessary to be at odds with your ex. The binary system of winner takes all no longer fits the model. The adversarial model does not fit well with an amicable separation.

Additionally our society is moving toward a more DIY style of existing. We see this with the advent of companies like Uber and Air BnB dominating the landscape over which taxis and hotels once reigned supreme. In a 2014 survey of litigants in a civil trial who had won, their number one complaint was the fact they had not had the opportunity to be heard (it is of note that litigation does not allow for the client to speak, just their representative).

The advent of companies outside of the government that offer services to supplement the courts is indicative of the needs of the population. Private companies that offer restorative justice, mediation, and negotiation services are a prime example of this and the statistics are overwhelming that these processes work.

Barton informs me that the first round of Millenials graduated law school in 2007 and have been looking to reshape the legal landscape ever since. It is his job, as an educator to prepare these young soon-to-be attorneys to be not only fighters, but also problem-solvers and designers.