By John Lande
I recently
retired as the Isidor Loeb Professor at the University of Missouri School of
Law, which inspired me to write My Last Lecture: More Unsolicited Advice for Future and
Current Lawyers. Some of the guidance in that
article is specifically for law students, but most of it is about good
lawyering. Here are some highlights.
Understand Your
Clients’ Interests. Lawyers often assume
that they know what their clients want: to get as much money or pay as little
money as possible. While clients usually are concerned about their bottom line,
they often have additional interests. In virtually any kind of case, parties
may want to be treated respectfully and fairly, minimize the cost and length of
the process, free up time to focus on other matters, reduce the emotional wear
and tear caused by continued disputing, and protect privacy and reputations.
Plaintiffs may have interests such as obtaining favorable tax consequences,
getting non-monetary opportunities, and receiving explanations or apologies.
Defendants may have interests such as receiving acknowledgments about the
charges’ lack of merit, making payments in kind, stretching payments over time,
sharing liability with other defendants, preventing ancillary harm, receiving
favorable tax consequences, obtaining nondisclosure agreements, and avoiding
future lawsuits. If you satisfy your clients’ interests, they are more likely to
pay your bills, hire you again, and refer other clients to you.
Pay Attention to
What’s Really Important. Typically, it’s good for a
lawyer to show that the law is “on your side,” get favorable agreements, and
win at trial. That’s often how lawyers measure success and get good
reputations. It’s certainly fine to take pride in your work and to want to get
recognition for it, but remember that your first priority should be your
clients’ interests—not yours. Winning is a means to achieving your clients’ ends,
and it shouldn’t be the end in itself. Don’t “win the battle and lose the war.”
Since clients are likely to have multiple interests, your job should be to help
them achieve their highest-priority goals.
Recognize the
Importance of Emotions—Especially Yours. Many
lawyers seem afraid of emotions. They assume that practicing is only about
rational analysis of the law and the facts. To them, emotions are messy and get
in the way of good legal representation and decision-making. They wish that
people—especially their clients—would just put their emotions to the side. But
people can’t avoid emotions entirely and it’s foolish to try. Emotions provide
a lot of valuable information, such as what is particularly important. Lawyers
should focus on their own fears, which typically permeate their legal practice.
As described in my article Escaping from Lawyers’ Prison of Fear, there is a
long list of things that lawyers dread, including actions by law firm partners,
clients, adversaries, and judges. Although fear is a normal—and often
helpful—emotion, it can lead to serious problems including mental health issues
and substance abuse. Plan strategies to deal with stress, including meditation,
diligent preparation, rehearsing, practicing in simulated settings, positive
self-talk, advice from mentors, and professional services when needed. You can
also reduce stress by managing your cases cooperatively whenever appropriate.
Get to Know Your
Counterpart. Lawyers often assume that their “opposing
counsel” will be hard to work with. This can be a self-fulfilling prophecy.
Sometimes your counterparts will be a pain in the neck, but often they just
want to be reasonable while protecting their clients’ interests. If you have a
good relationship with your counterparts, you can work out problems pretty
easily. If you have a bad relationship, your cases can become your own private
hell. If you have a case with a lawyer you have never worked with before,
consider getting to know each other over coffee or lunch or even a phone call.
If you do this, when problems arise in a case, your counterparts are more
likely to call you and less likely to fire off a nasty email or file a motion.
Make a Habit of
Resolving Matters Early. Although there are good
reasons why lawyers delay moving ahead in some cases, you should generally
avoid procrastinating. Lawyers know that the vast majority of cases settle without
going to trial, but they often feel powerless to steer clients toward
negotiation. Trapped in the “prison of fear,” lawyers may worry about harming
their clients if they settle before completing all possible discovery (even
though most of it won’t make any difference). Lawyers (and their clients) often
worry that merely suggesting negotiation would
make them look weak, leading the other side to try to take advantage. But, as
retired judge Robert Alsdorf says, “Being willing to negotiate doesn’t make you
look weak. Being afraid to negotiate makes you
look weak.” One lawyer said, “Sooner or later, you will need to negotiate. You
need to get out in front, get the facts, get the client on board. Try to
prepare a settlement letter. … This drives the case in the right direction. If
you wait, you just get sucked into a pile of mud. If the other lawyer sends the
letter, then you have to catch up.”
Be Prepared to
Negotiate More. In addition to negotiating final
resolution of disputes, lawyers also negotiate with each other about
substantive and procedural issues during litigation, such as acceptance of
service of process, extension of deadlines, scheduling of depositions, and
discovery disputes. Of course, they also agree with clients about fee
arrangements and how to handle cases. They reach agreements with co-workers,
process servers, investigators, court reporters, technical experts, financial
professionals, and mediators. They also reach agreements with judges about case
management issues, such as discovery plans and schedules, referral to ADR
procedures, and ultimate issues during judicial settlement conferences. Indeed,
litigation is a continuing stream of agreements. If you treat people
respectfully and understand their interests, you can reach good agreements that
satisfy your clients’ interests without unnecessary disputes.
Get Help From
Mediators When Needed. Sometimes, despite your
best efforts, you can’t reach a settlement. Mediators can help identify and
overcome the barriers to settlement, including poor communication, strong
emotions, unrealistic expectations, pressure from others (such as superiors in
their business, colleagues, or spouses), or need for reassurance from a neutral
professional. Sometimes, parties won’t accept your advice but will be persuaded
by the same analysis from a mediator.
Be Prepared to
Advocate Hard and Smart. Professor Stephen Easton
advises that if you determine that an issue is important to fight about, you
should “fight hard, fight smart, fight with conviction, passion, and
perseverance, and fight to win.” I generally agree with this advice with two
qualifications. First, even if you determine that an issue is very important to
your client, it is essential to fight about it only after you
have unsuccessfully explored alternative ways to satisfy your client’s
interests. Second, I suggest using the word “advocate” instead of “fight”
because people often think that lawyers fight in unnecessarily nasty ways.
Lawyers need to advocate effectively, sometimes exercising power both in
negotiation and in court. If you convey your willingness and ability to do
this, your counterparts may act more reasonably. If you give them the choice of
handling the case the easy way or the hard way, and they believe you are ready
to do it the hard way, they may prefer the easier way.
John Lande is the
Isidor Loeb Professor Emeritus at the University of Missouri School of Law. He
is the author of Lawyering
with Planned Early Negotiation: How You Can Get Good Results for Clients and
Make Money, a detailed practice
guide published by the American Bar Association. He blogs at indisputably.org.
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