A call came in asking whether I would be interested in working with another lawyer on a case. The caller explained that he wasn’t dissatisfied with the other lawyer, exactly, but wanted a second opinion, a second head. “Two heads are better than one, right?” he said to me.
Well, no. Most of the time, two heads are not better, and often worse.
Aside from there being a platitude for everything (too many cooks spoil the broth), choices ultimately must be made. Immediately after OJ Simpson’s acquittal, everybody wanted a “dream team” of lawyers, just like Juice. Until, that is, they found out what a dream team costs. Clients aren’t always good with numbers.
But the Simpson dream team did something smart. Each was charged with handling a specific aspect of the case, suited to their strength, so that they didn’t step on each other. Sure, there was massive conflict anyway, and some major hate grew out of the association, but it worked at trial, which is what they were there to accomplish.
So why can’t we work together? Well, it’s not that we can’t, but that it doesn’t necessarily improve the performance of our functions. If one lawyer says go left and the other says go right, do you compromise and go straight? Nobody said go straight, and going straight would be a disaster.
If the lawyers agree on a course of action, that’s great. There may be minor issues, but let’s assume they don’t impair the primary position as to proper strategy and tactics. The client then achieves validation and feels more confident in the legal advice. And the lawyers hope they’re right, because it would really suck if both agree, the client follows the advice, and it blows up in his face.
But that’s not particularly helpful. If the client only had one lawyer, and that one lawyer gave the same advice which the client followed, he would end up in the exact same place. Perhaps there would be doubts, but that doesn’t change the course of action taken, which will either bear out or not.
If the lawyers disagree, however, what’s a client to do? He’s forced to pick between competing professional recommendations, which he’s ill-equipped to do by definition. After all, if the client knew the best course, he wouldn’t need the lawyer’s advice in the first place.
The client could always seek the advice of a third lawyer, the tie-breaker, which creates the bizarre position of having the advice of a lawyer who failed to make the cut for first or second lawyer take precedence. Why follow the advice of a lawyer who wasn’t worthy of being your first or second choice?
There is also the possibility of the lawyers, because they want so much to work together in a cooperative fashion (and which conforms to today’s collaborative trend), reaching a compromise. But splitting the baby was never the solution King Solomon planned to impose. It was a scare tactic.
This doesn’t mean that the two lawyers can’t bounce their ideas off one another, argue out their relative positions and see the virtue in what the other lawyer thinks. That can happen, and in a perfect world, the best idea would emerge from the collaboration of two minds with the single goal of doing their best for their client.
Yet, collaboration gave us the Supreme Court’s opinion in Buck v. Bell, written by the adored and respected Justice Oliver Wendell Holmes, whose writing on the subject of socialist speech in Schenk gave us the almost invariably misquoted gem that the First Amendment “would not protect a man in falsely shouting fire in a theater and causing a panic.”
Holmes’ propensity for “rhetorical flourish” brought us this rationale:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.
Only one justice, Pierce Butler, dissented. The other seven joined in Justice Holmes’ position on eradicating imbeciles for the good of society. If two heads are better than one, then Holmes was right and Butler was wrong.