Over the 21 years I have been practicing, I have come to the realization and conclusion that the two most common questions new clients want answered are: (1) how much? and (2) how fast? Over the years as a small firm and solo practitioner in areas as diverse as Mechanic Lien Foreclosures and Family Law, I have actively encouraged clients to address these types of questions in open, frank, and transparent ways from our very first telephone contact. After having the “how much and how fast” conversation with clients over and over again throughout my legal career, I have come to believe it is essential to providing good representation to actively help clients set appropriate expectations and goals around what the law can and cannot do and about the costs of any proceeding (not only the financial costs, but the emotional and relationship costs). Helping clients frame expectations in terms of what they might hope to “win” or “be entitled to” is one of the most important tasks we as lawyers perform for clients no matter what their dispute, conflict, or issue.
A 95 percent civil settlement rate and the increasing use of negotiation, mediation, and collaboration in resolving lawsuits have dramatically altered the role of the lawyer. The traditional conception of the lawyers as “rights warrior” no long satisfies client expectations, which centre on value for money and particle problem solving rather than on expensive legal arguments and arcane procedures.
Thus opens the preface of the book titled, The New Lawyer, How Settlement is Transforming the Practice of Law, (UBS Press 2008) by Julie MacFarlane, professor in the Faculty of Law at the University of Windsor, British Columbia. MacFarlane’s book is based on ten years of empirical research with lawyers and clients and explores the changes that are taking place in the practice of law in North America (Canada and the U.S.). MacFarlane’s work bears out my own practice experience, and I am sure the experience of many Catalyst readers, that clients generally expect and prefer more pragmatic cost-conscious and time efficient approaches to problem solving then the traditional litigation and court systems can offer. Her book is recommended reading for any professional who struggles with the issues of how to better manage their clients and their own expectations around effective legal problem solving on all levels.
One of the premises MacFarlane explores is the growing mismatch between traditional adversarial advocacy and the pressures to participate in early settlement processes. A professional tension which has also been described as “akin to riding two horses at the same time”1 MacFarlane describes the emergence of the “new lawyer” and the “new advocacy,” and along with some great quotes2 from practicing lawyers, she makes a powerful argument about how lawyers must retool to become more effective service providers in the 21st century. Professor MacFarlane identifies what she calls the “core dimensions of new lawyering” (page 23) which distinguishes the “new lawyer” from the “old lawyer”, who is the traditional adversarial lawyer. These three core dimensions are:
(1) The elevation of negotiation skills that are no longer based on a “positional bargaining”3 model but on problem solving strategies or “interest-based” negotiation skills;4
(2) Communication skills, such as listening, explaining, questioning and establishing rapport and trust. MacFarlane observes that “in the hierarchy of effective communication skills, the pinnacle has traditionally been courtroom eloquence—the persuasive making of substantive legal arguments” and not interpersonal communications skills such as empathy, self-awareness, optimism, and impulse control.5
(3) Partnering with the client. The traditional model put the lawyer in a “father/mother-knows-best” parental role and the system is one in which the clients deposit their problems on the lawyers’ desks to be fixed and made to disappear. Whereas the “new lawyer” considers his/her client as a partner in problem solving to the extent that it is feasible and desirable for the client. “The client will participate more actively in planning and decision making and perhaps in the conduct of negotiations with the other side. The new lawyer offers a participatory model of compassionate, client-centered, professional service instead of the traditional “trust me” detachment of the old lawyer.” (Page 24).
Professor MacFarlane’s work maps out the differences between the “new lawyer” and the “old lawyer” models of representation by looking at the history of legal education and the evolution of lawyer stereotypes. She examines how attorneys form belief systems about themselves and the roles they come to believe they play in the conflict resolution continuum. In Chapter 4, she explores the norms of settlement negotiation in the litigation systems (referred to as “litigotiation”) and contrasts those with the emerging norms of negotiation in client-driven, non-litigation models, such as Collaborative Practice.6 She challenges her reader to question the proposition that “all conflicts are rights based.” She points out that:
[T]he key to effective lawyering lies in discriminating between different types of conflicts and what are the appropriate means of addressing and resolving them in ways that meet both the needs of the disputants and society’s interest of fairness. Lawyers should be able to apply their professional judgment to this question rather than adopting without question the nomenclature of every client who describes their conflict as “a matter of principle.
Professor MacFarlane argues that the claim of “principle” is often attached to disputes which in their origins are about shared resources and the parties’ ability, or rather inability, to share and the determination of who is “right” in the context of a continued need to function in the relationship. The examples of relationships where there is a continued need to function after the particular legal dispute is resolved are family and small business relationship. Accordingly, “an exclusive or overwhelming focus on a rights-based model is an inadequate, inappropriate, and simply impractical means of resolving every type of dispute” (Page 94). Further, “rights based” case management encourages the collection and concealment of as much information as possible while discouraging early exchange, which most often then leads to costly and time-consuming “discovery wars.” This type of “rights based” thinking encourages a philosophy of “my loss is automatically the other side’s gain.” As MacFarlane puts it, in the traditional conflict resolution model “information is for winning, not for sharing, and certainly not for enhancing the possible options that are available to the parties” (Page 80).
When answering the “how much and how fast” questions for clients during the initial consultation, I often drawn from what I learned in MacFarlane’s work and confidently answer—“It depends.” The resolution depend on many factors: my own experience, education, and expertise; the client’s goal for the outcome; the client’s “budget” for the proceedings; the client’s and lawyer’s mutual participation in problem solving; and the client’s and attorney’s mutual understanding of expectation and realistic outcomes of each of the dispute resolution models now available. I also explore with the client his / her concrete goals, needs and interests. I question if the client wants settlement or merely wants to take positions and make demands for “rights” or “entitlements.” I explore the client’s capacity to partner in finding his /her own outcome, and I explain, as is pointed out clearly by Professor MacFarlane in the Preface cited above, that the research reveals 95 percent of all civil matters end up being negotiated and settled and not decided by a judge or jury. It is then a matter of what negotiation model can be most effectively employed for this client—the “litigotiation” model or other models such as mediation, Collaborative Practice, and Cooperative Law.7 To empower clients and help them better understand and appreciate the legal system, clients need to be educated about the choice of dispute resolution process and understand that the choice is theirs to make. Most especially because that choice impacts their bank account and their time and can ultimately can impact the outcome reached and how that outcome will play out into the future.
MacFarlane’s book is a “must read.” It can serve as a starting place for any lawyer wishing to examine deeply where she fits into the conflict resolution continuum and how to bring greater meaning to her relationship with clients and the part played by her in helping those clients achieve more respectful, peaceful and sustainable outcomes to their conflicts. ■