Why does litigation so often have to descend into smear tactics?

I’ll never forget this cover of the American Bar Association’s monthly Journal, from sometime in 1999:

In those few times I’ve had to be involved in litigation, it surprises me that, at some point, the defendant starts to resort to some sort of attack that does not go to the merit of the case. Sure, it’s twisted in some way to make like it has to do with it. But really, it’s just a shot. And I think some of these regularly practicing lawyers like to think that they’re so very sophisticated by coming up with these clever ways to do this. Is it a successful tactic? I really wonder. I know it tends to make people think a lot less of the judiciary, to the extent that this sort of thing is let in.

I guess it’s depending on your judge. But where do these folks on the other side of the “v” come off, saying, “well, we don’t really want to respond to this one thing, so let’s come up with . . . something from 20 years ago, and stick it in there, so the judge knows about it! Yeah, let’s talk about that instead!” Except the “that” really has its own comprehensive story behind it, and the thing that some Westlaw surfer saw as their “big discovery” was really just the:

“well we don’t want to respond to this one thing, and so . . .”

trick from some other lawyer in litigation from 20 years ago!

It’s like those wooden dolls, maybe from Russia or China, where you take off the top half of the one doll, and there’s a smaller one, just like it, inside. And you keep doing that.

Litigation stinks. I know I’ve said this on this blog before. But, when someone wrongly takes a job from you, or doesn’t pay you for work, or whatever the reason is—and they don’t want to dialogue with you about it—you’re not left with much of a choice! “Just forget about it” is the default one that many people are forced into by circumstance. But in the greater scheme of things, that is really no solution—because it just means the bad behavior is going to strike another victim at some point in the future. It’s much better to seek solutions to problems, so they don’t occur again.

As a society, America used to be a place that sought solutions to problems. Now, I don’t what is going on.