A ‘See You in Court’ Mentality May Stifle Good Lawyering

Posted: June 21st, 2017 by

It’s unfair to be too critical of lawyers who are quick to throw up their hands at preliminary junctures of civil disputes and repeat the oh-so-common mantra, “See you in court!” After all, we were trained in law school to be zealous advocates and the judicial system is geared to reward steadfast—sometimes just plain obstinate—adherence to a “strong” legal position. Consistently pounding the law, even when connection to the facts is tenuous, often results in victory and, in most situations, at least produces even odds of success. Certainly, there are some situations that cannot be resolved without the Solomonic authority of a master, judge or jury to decide a close call or to end a meritless rampage by misguided litigants or their lawyers. But participants in many civil disputes would be far better served if their lawyers had resources other than the relentless advancement of a specific position. Certain family law matters—for example, the financial issues associated with divorce-separation and the details of parenting arrangements between capable adults—are particularly well-suited for an approach that looks beyond the traditional “position-based” outlook we learned in law school and have practiced for years. In position-based negotiations, attorneys identify the relevant legal principles and search for facts that strengthen their client’s and diminish their opponent’s chances of success on each point. Successful lawyers come up with the strongest or most creative arguments on both sides of an issue and, with experience, learn to present the supporting facts in the order that will be most likely to attract the attention of the fact-finder. When done well, it’s not easy work, but the parameters are well-defined, leaving no impetus to think outside the box.

Comparatively, it’s much tougher work for lawyers to approach conflict resolution from a perspective that focuses on the interests of all parties and the nonparties who are directly affected: children, in family cases; employees and customers, in business cases; community members, in government and neighborhood disputes, etc. Interest-based negotiation—a relatively new addition to law school curricula, if available at all—presents challenges to the traditionally trained lawyer. There are two common intellectual obstacles: Isn’t a lawyer ethically obliged to view legal matters with blinders, focusing exclusively on winning the point for the client? Won’t business development be hindered absent a go-for-the-jugular reputation?

With the emergence of collaborative practice, clear ethical guidance is available to help answer the first question: Yes, it’s OK for a lawyer to provide limited representation. The collaborative practice begins with the parties’ agreement to reach a settlement but not to litigate if negotiations fall apart, consideration for the interests of all stakeholders and not just the client in fashioning agreements, and to openly call out a client for concealment of relevant information or bullying negotiation tactics. This doesn’t mean that there’s no room for lawyering in a collaborative process, but the problem-solving becomes more creative and expansive when advocates have the freedom to look at the situation from more perspectives than simply “winning” for their client.

As for the effect on a lawyer’s ability to attract business, there will always be those clients whose knee-jerk reaction to legal claims is to hire the biggest and meanest braggadocio in town, but today’s potential clients are progressively seeking more civilized and less costly ways to resolve controversies. They search online for “divorce without court,” “DIY parenting plans,” “friendly breakups,” and the like; they ask for a single lawyer to dissolve their small business or marriage because “we agree about everything;” and they make their expectations clear: “I want to resolve the problem but I don’t want to [pay to] go to court.” Call it wishful thinking, but I see plenty of business for lawyers who also buy into the notion that a “victory” refers to the dignity and respectfulness of the process and the parties as much as the whole tit-for-tat of the outcome. Modern clients want lawyers to be advisers who assist them in more civilized solutions to problems and do not promote litigation.

The most difficult part of reshaping a “see you in court” mentality is not figuring out how it jives with ethical mandates and marketing wisdom. It is realizing that the lawyer’s negotiating role doesn’t end with some polarized impasse over a legal issue; rather, that’s when it’s time to roll up sleeves, reconvene around the table and think of other ways to approach and resolve the disagreement. When “see you in court” isn’t an acceptable retort, lawyers are forced to think more creatively and not limit their clients’ options to the confines of narrowly defined positions.

For over three decades, I was one of those family law attorneys who wrung my hands lamenting about the expense, inefficiency, hurtfulness and time-consumption of litigation, until it was time to end the conversation. A few years ago, I put my money where my mouth is: I stopped litigating, I only accepted cases as a mediator, as the advisor of a client in mediation with someone else, or as an advocate in a collaborative case. I started educating potential clients about alternative dispute resolution options before launching into an assessment of how strong each client’s case would be in a litigated setting. I stopped teaching the divorce law and procedure course my partners and I developed years ago when I realized I was mostly teaching law students how to litigate in a courtroom. Now, I promote replacement courses that start with understanding how the human brain responds to conflict and look for opportunities to point out to my longtime colleagues in the family law bar how restrictive and polarizing a position-based approach is. In short, I’ve become a zealous advocate for changing the family law bar from a litigation-focused group to creative advisors on healthier ways to resolve family breakups. I am convinced this approach is what the majority of clients will demand of us in the future, because it beats the “see you in court” environment some attorneys have allowed to dominate.

Reprinted with permission from the JUNE 21, 2017 issue of THE LEGAL INTELLIGENCER (online). © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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