Thursday, April 21, 2016

Four clients

The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer's advice. But not all clients are wise.

The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired from their job unfairly, but have no idea what remedies might be available or whether they are worth pursuing. These clients tend to spew out a long, convoluted story that recounts in great detail all of the circumstances giving rise to their injury. For such clients, the lawyer must try to listen patiently, but their legal training teaches them to sift through the story trying to find elements of potential legal claims in it, while ignoring other parts that do not support a cognizable claim. Lawyers often try to educate this kind of client on those elements, in an effort to get them to focus on facts that are necessary to proving available legal claims. The lawyer might point out, for example, that unfair business decisions are not necessarily actionable, unless they were made for an improper purpose, such as discrimination based on age or sex or ethnicity. That prompts the client to see the story in a somewhat different way. In the process, a lot of what the client initially thought was important gets left on the cutting room floor, and the resultant story, while legally coherent and based on facts that that lawyer and client think they can prove, may not end up satisfying all of the client's concerns.

Lawyers might be better advised to figure out an appropriate way to present the client's actual grievances to the other side, rather than compressing them into a narrative judged only by whether it states a provable legal cause of action. Because, after all, most of the time the merits of the legal claims are never going to be finally adjudicated anyway, since the vast majority of cases end up getting resolved by negotiated agreement. And to reach that negotiated agreement we often have to bring back into the picture some of the client's concerns that got left out of the initial framing of a legal complaint. Those concerns might even prove more compelling to the other side than the story the law encourages parties to contrive.

Then there is the wicked client, who comes to a lawyer having already framed their problem into the shape of a legal dispute. What they want to know is how their claim is going to be decided. Are they right or wrong in thinking that the court is going to favor their obviously justified actions, and punish the dastardly conduct of the other side? Or less often, they might express worries that the court will find them liable for their actions. For these clients, the lawyer's training teaches them to advise the client on the merits of their legal claims and defenses, and the factors that might affect their adjudication. Even though lawyers hedge their bets with many caveats and uncertainties, they also need to show the client that they are capable of acting as a strong advocate for their cause. They must show sympathy for the client's view, and they must try to make the strongest case they can, even while pointing out potential obstacles along the way. What the client hears from this discussion usually tends to vindicate their initial point of view. They now feel armed with even more legal arguments that they can use to vanquish their adversary. They tend to discount the facts and arguments that might favor the other side.

What lawyers should more often be emphasizing to this latter group of clients, however, is that in the vast majority of cases, it is unlikely that any court or tribunal is ever going to determine the merits of their dispute. Because, as stated above, cases tend to get resolved by negotiated agreement. So the wicked client's belief that they are going to win the case may not be as important as they think. Instead of pounding the other side with the righteousness of their cause, they should be thinking of what tools they can use to help bring the case to a favorable resolution. The wicked client needs a better understanding of how the other side views the dispute, and how to satisfy the other side's needs and interests to bring the case to resolution.

Finally there is the client who does not know how to ask. This client may be shell-shocked: injured in an accident, facing separation from a spouse, feeling deceived in a business transaction. The lawyer needs to answer questions for this client that the client does not even know how to formulate. At the same time, the lawyer should try to help this client articulate their own needs, otherwise the lawyer is in danger of presuming knowledge of what the client wants, and substituting his own ideas of what the client's goals should be for the client's actual goals.

Even though there are four (at least) kinds of clients, just like there are four kinds of children addressed at the seder table--and most clients, like most children, combine aspects of all four types--they are all really asking the same question, which is what does this all mean and what is my part in it. And we should be trying to answer them in a way that does not encourage their worst tendencies, but instead helps them to figure out what interests and needs are most important to them, to develop some perspective about the situation, and to achieve a positive resolution.

Saturday, April 16, 2016

Avoiding Litigation

The ABA Dispute Resolution conference, held this year in New York City, presents an interesting mix of programs on mediation, arbitration, negotiation and collaborative practice. The conference manages to combine these fields, even though the cultures of mediation and arbitration don't always mesh very well; in fact they sometimes seem like opposites. But practitioners in both fields seem to get along. What they have in common is the desire to avoid litigation. Having a common enemy makes friends of us all.

Thus, at one of the panels I attended, in-house counsel acknowledged that they require employees to sign arbitration clauses so that the company can avoid the burden and expense of class action lawsuits. Mediation or arbitration of employment disputes is also encouraged to avoid the costs of ordinary litigation, especially the cost of discovery disputes. At another session, the benefits of early dispute resolution were mainly described in contrast to the enormous expense of motion practice and document production found in litigation. These concerns are valid, and it is absolutely correct that ADR can and should be promoted as a faster and cheaper alternative to litigation. But perhaps more attention should be paid to the question whether we can reform litigation--the "normal" conflict resolution process--instead of treating it as the bogeyman.

When I hear attorneys and clients complain about the high cost of discovery and motion practice in litigation, my first thought is that we should attack that problem more directly. We could greatly improve the court system by reducing the number of motions filed, and the amount of discovery sought. Most of those efforts are wasted anyway. Those pre-trial battles usually do not help much in the assessment of settlement options. They may even cause so much negative reaction from the other side that they hinder settlement. And even for the relatively rare cases that go to trial, trial counsel usually find that the boxes containing all those discovery disputes and other pre-trial motion practice are hardly ever opened. I firmly believe that if litigators could learn to find common ground where possible with their adversaries, instead of reflexively opposing everything the other side says, we could remove much of the waste and negativity that pervades litigation. We could also achieve better results for clients by negotiating the resolution of disputes within lawsuits, especially discovery disputes, rather than asking the court to decide them all, and we would save clients a lot of money by doing that.

But even if we were to assume that all of the expensive discovery and motion practice in the court system were necessary--and much of it unfortunately is necessary or unavoidable--it still seems to me that we are selling ADR short by selling it only as an alternative to a costly and inefficient litigation system. We ought to be touting the positive benefits of mediation and other negotiated resolutions of conflict--the opportunity for parties to control the outcome, to achieve greater understanding of the opposing party's interests, to resolve disputes in a more constructive way--instead of suggesting that we like ADR just because it is faster and cheaper than litigation.

If all we wanted was a cheaper and faster means of resolving disputes than presented by the court system, we could roll dice to determine outcomes. The process of dispute resolution must have higher aspirations than simply finding a cheaper and faster alternative to litigation.