Marjorie Silver has authored a book on collaborative law. (Photo by Sabina Mollot)
By Sabina Mollot
A Stuyvesant Town attorney, whose career has been shaped by alternative law, or more specifically, law when practiced in a way that’s meant to be more civil — and less traumatizing — for all involved in a case, has just released on a book on the subject.
Transforming Justice, Lawyers, and the Practice of Law was put together by Marjorie Silver, who also wrote one chapter with the other 15 chapters written by different authors.
Nearly all those authors, along with Silver, were participants in the Project for Integrating Spirituality, Law and Politics (PISLAP), which is aimed at making law more collaborative and less adversarial. The publisher is the family-owned Carolina Academic Press.
Silver, who’s been an attorney for decades and is also an associate professor at Touro Law Center, said she has always tried to encourage students to practice law in the same fashion, “in a way that’s less adversarial, more healing.”
This is her second book on the subject of law; the first was Affective Assistance of Counsel: Practicing Law as a Healing Profession, published in 2007.
As for what it means to practice law in a way that’s collaborative, mainly it’s about coming to resolutions without litigation.
In one example, Silver said if handling a divorce, attorneys for both sides would work face to face, alongside the soon-to-be ex-spouses, to handle the split as amicably as possible, especially when there are children involved.
“Open finances, no hiding assets,” explained Silver.
If for some reason the former couple couldn’t come to an agreement to resolve the situation peaceably, then the attorneys would withdraw from the case, which, Silver said, gives the clients motivation to settle out of court.
“Divorce litigation does so much damage,” she said. “It never ends with people happy.”
She also gave another example of collaborative law in the case of a crime, in which a teenager was arrested for shoplifting costume jewelry from a store. The legal approach was to have the young defendant and the store’s owner speak directly about what happened. The teen was then able to explain her reason for stealing, which is that she was envious of her friends at school who could afford jewelry and she thought taking it wouldn’t hurt anyone. The shop owner’s response was to tell the girl about how the margin of profit in that type of business was very narrow, so even shoplifters could cut enough into an owner’s profits to convince him or her to close. However, the owner then offered the teen the opportunity to work off the jewelry she’d taken and the teen accepted, and ultimately ended up employed at the business.
Silver said this approach could also be helpful even in far more serious cases, like those involving medical malpractice. Often, she said, the standard procedure for a hospital or medical practice is not to allow a defendant to even speak with the person alleging malpractice.
“People are advised, ‘Don’t admit you made a mistake,’ while this is the opposite of what we were told as children, which is to take responsibility for your actions,” Silver said. There are times, she added, where someone who’s suing may not even be looking for a huge payout, but rather an explanation of what went wrong or an apology. Unfortunately, she noted, “There are too many lawyers who don’t care what clients want.”
This style of law practice got its start in the 1980s by a traditional attorney, Stu Webb, who was thinking of quitting the practice because the cutthroat nature of most cases went against his Quaker beliefs. “Then he had a brainstorm,” said Silver, “and it began to catch steam and it has been used in many countries in the world. It’s not as widespread in New York as it is in other places, but in Texas and Florida it’s encouraged by the courts.”
Her own chapter in the book is titled, “Healing Classrooms,” and was written with the aim of giving law education more of a human element.
“Traditional legal education undermines the well-being of law students,” said Silver, adding that many students end up developing anxiety, depression and dependence on drugs due to stress. Often, she added, in their attempts to prepare students for the courtroom, professors “will keep throwing questions at students, and no answer is ever sufficient. There are so many things about legal education where students get called on cold and that terrifies them.”
Meanwhile for most students of law, the reason for getting into the field is to help people. (At least that’s what they all say in the application essays Silver comes across.) “Traditional education has very little resemblance to that calling,” Silver said. Not only do students of law develop substance abuse issues at a much higher rate than students of other subjects, but “it doesn’t leave them when they enter the profession.”
To end this cycle, Silver said professors need to take a more holistic approach in the classroom. “Being kind and civil and concerned with the whole student. We have to produce students who are that way with the client and not see the client as a legal issue to be resolved.”
Silver has taught and written about alternative law practice since 1983.
“The longer I taught it, the longer I saw litigation as an unnecessary, expensive, stressful process,” she added.
Prior to becoming an educator, Silver worked for the federal government for 10 years.
For some of those years, she served as chief civil rights attorney for the United States Department of Health, Education and Welfare, which has since split into two departments. Before that, she began her career working for a federal judge for one year.
Silver has lived in Stuyvesant Town since 1980. Her husband, Doug Block, is a filmmaker.
Her new book, $68, is available online on Amazon or through the publisher at cap-press.com.