As published in The Chicago Daily Law Bulletin
The wonderful new musical “Hamilton” is brilliant in many ways — not the least of which is its witty portrayal of the rules about duels.
Talk about a great system of dispute resolution! Fast. Final. No appeals. Almost no paper. No lawyers. No fees. No discovery. No costs. What could be wrong with that?
The irony is that our current court dispute system preserves nearly all the same rules.
The wonderful new musical “Hamilton” is brilliant in many ways — not the least of which is its witty portrayal of the rules about duels.
Talk about a great system of dispute resolution! Fast. Final. No appeals. Almost no paper. No lawyers. No fees. No discovery. No costs. What could be wrong with that?
The irony is that our current court dispute system preserves nearly all the same rules.
The Hamilton-era “Ten Duel Commandments” ran something like this:
Absolutely barbaric, right? This is a simplified version of the very ritualized Code Duello drawn up at the Clonmel Summer Assizes of 1777 and used throughout Ireland, England and continental Europe.
The code had 25 rules with very specific provisions. Dueling in 18th century America was hip. Duels were illegal, but not at all uncommon. (What was uncommon was for anyone to actually die. In fact, killing your adversary was not necessarily one of the goals.)
Dueling was more about standing up for your beliefs to the point of being ready to die for them.
Nearly all duels settled without an actual exchange of gunfire. Hamilton, for example, had participated in 10 duels without a shot fired before the fatal 11th.
Have we come a long way since then! Now we have a billion rules between statute and cases for dispute resolution in court. But if we could reduce them to 10, they’d still be:
About 202 years after then-sitting Vice President Aaron Burr shot Alexander Hamilton, we’re essentially still at it. The chest-beating. The demand for satisfaction at all costs. The protection of honor. The tremendous waste of time and energy. Nearly all cases settle without an actual trial. If the process plays out, everyone loses.
Imagine if we could figure out how to widen the world to make it large enough to settle disputes without so much loss. Imagine if we could figure out dispute resolution that simply addressed the dispute without the emotion.
The art and science of mediation so often requires dealing with ego, anger and the quest for retribution which runs bone-deep.
How often does a side say they are insulted by the other’s response? How often does a side say their response is tied to their opponent’s last bad move? How often is a deal bogged down or thwarted by past conduct or by “principle?”
How difficult is it to get each side to understand the other’s positions and interests? The mediator’s challenge is to effect real communication.
Interestingly, historians still debate whether Hamilton intentionally threw his shot away by firing his pistol high into the air. That was his pre-duel pledge.
The more common practice may have been to fire into the ground to signal an intent not to shoot to kill. Possibly, Burr shot, not understanding Hamilton’s intent. Burr did not know of Hamilton’s pledge, and heard a ball whiz past and hit a tree behind him — a misunderstanding that cost Hamilton his life and Burr his reputation.
How many cases today linger on, unresolved, simply because the parties and their lawyers similarly misunderstand each other? Because they have not figured out how to communicate?
The duel had all of the classic human challenges with which we still struggle when we try to resolve disputes: ego, anger, and lack of communication. Our system has preserved a surprising amount of the ritual of the Code Duello.
Maybe it’s better than in Hamilton’s day. But we still have a long, long way to go.
- Challenge your opponent, and “demand satisfaction/ If they apologize, no need for further action.”
- If they don’t apologize, then “grab a friend, that’s your second.”
- “Have your seconds meet face-to-face” and have them “Negotiate a peace …/ Or negotiate a time and place.”
- If they can’t settle the dispute, “Time to get some pistols and a doctor on site.”
- Meet in the early morning. “Duel before the sun is in the sky/ Pick a place to die where it’s high and dry.”
- “Leave a note for your next of kin/ Tell ’em where you been.”
- Get prepared for action — “Ready for the moment/ Of adrenaline when you finally face your opponent.”
- Make one last attempt to negotiate — “Send in your seconds, see if they can set the record straight.”
- It’s happening: “Look ’em in the eye, aim no higher.”
- "Fire!”
Absolutely barbaric, right? This is a simplified version of the very ritualized Code Duello drawn up at the Clonmel Summer Assizes of 1777 and used throughout Ireland, England and continental Europe.
The code had 25 rules with very specific provisions. Dueling in 18th century America was hip. Duels were illegal, but not at all uncommon. (What was uncommon was for anyone to actually die. In fact, killing your adversary was not necessarily one of the goals.)
Dueling was more about standing up for your beliefs to the point of being ready to die for them.
Nearly all duels settled without an actual exchange of gunfire. Hamilton, for example, had participated in 10 duels without a shot fired before the fatal 11th.
Have we come a long way since then! Now we have a billion rules between statute and cases for dispute resolution in court. But if we could reduce them to 10, they’d still be:
- The challenge. Demand satisfaction. If they pay, no further action.
- If they don’t, grab a lawyer. That’s your case.
- Have your lawyers meet face to face. In court, negotiate a time and place.
- If they don’t reach a peace, that’s alright. Time to get your e-discovery, experts and trial consultants on site. You pay them in advance and you treat them civilly. Don’t let them take a side so they keep their credibility.
- Litigate when the courthouse opens. Pick an advantageous venue.
- Leave notes for your clients and adjusters in case you lose. Pray that the appellate court lets you in or keeps them out.
- Admit your weaknesses. Ready for the moment of adrenaline when you face your opponent at the bar.
- Your last chance to negotiate. Send in your lawyers to set the record straight.
- Look them in the eye and shoot to win.
- Open!
About 202 years after then-sitting Vice President Aaron Burr shot Alexander Hamilton, we’re essentially still at it. The chest-beating. The demand for satisfaction at all costs. The protection of honor. The tremendous waste of time and energy. Nearly all cases settle without an actual trial. If the process plays out, everyone loses.
Imagine if we could figure out how to widen the world to make it large enough to settle disputes without so much loss. Imagine if we could figure out dispute resolution that simply addressed the dispute without the emotion.
The art and science of mediation so often requires dealing with ego, anger and the quest for retribution which runs bone-deep.
How often does a side say they are insulted by the other’s response? How often does a side say their response is tied to their opponent’s last bad move? How often is a deal bogged down or thwarted by past conduct or by “principle?”
How difficult is it to get each side to understand the other’s positions and interests? The mediator’s challenge is to effect real communication.
Interestingly, historians still debate whether Hamilton intentionally threw his shot away by firing his pistol high into the air. That was his pre-duel pledge.
The more common practice may have been to fire into the ground to signal an intent not to shoot to kill. Possibly, Burr shot, not understanding Hamilton’s intent. Burr did not know of Hamilton’s pledge, and heard a ball whiz past and hit a tree behind him — a misunderstanding that cost Hamilton his life and Burr his reputation.
How many cases today linger on, unresolved, simply because the parties and their lawyers similarly misunderstand each other? Because they have not figured out how to communicate?
The duel had all of the classic human challenges with which we still struggle when we try to resolve disputes: ego, anger, and lack of communication. Our system has preserved a surprising amount of the ritual of the Code Duello.
Maybe it’s better than in Hamilton’s day. But we still have a long, long way to go.