Friday, December 2, 2011
Abraham Lincoln admonished, "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” "The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, "Notes for a Law Lecture" (July 1, 1850).
I enjoy trying cases. Over the years, I tried hundreds of custody, divorce, criminal, and civil cases. As a lawyer it can be an incredible intellectual and professional exercise. In many instances, it is the worst thing for the clients. The trick is knowing when to battle and when to bend and then convincing your client to go along.
Most clients want their day in court. Some simply need to tell their story to someone who they believe has the power to fix it or, perhaps, just someone who cares. It is cathartic. Or, frequently, they believe, rightly or wrongly, that once the judge hears their side of the story the day will be carried, the battle won, and the war will end in a glorious victory. That is rarely the case and, usually, the ones who are most insistent on warfare are those with little ammunition and are least likely to be successful. Regrettably, there are far too many attorneys who happily take cases to trial with little or no effort to resolve the matter.
Despite a spate of alternative dispute resolution (ADR) programs and prompting by courts and sectors of the profession, settlement discussions seem foreign to many attorneys. They seem to lack either the ability or desire to convince their clients of the benefit of compromise. Even the inducement of decreased attorney fees, an expeditious resolution, and the certainty of the outcome are inadequate to keep some people out of court.
Ignoring the formal ADR or mediation programs, I am amazed at the number of attorneys who do not offer a settlement proposal; even a bad one. Some seem almost shocked to receive a letter or phone call in which a position is laid out and negotiation is invited. It is as if it is a new concept; an alien thought. What should be an expectation is often not even a fleeting thought.
In two decades of representing private clients, I learned that when given a thorough explanation and the chance, she will consider the cost and risk of litigation except in the most emotional of contests. A client should insist on making reasonable settlement overtures or she should expect to spend, perhaps, thousands of dollars more than may be necessary and risk an unfavorable judgment at trial. If she is not reasonable and realistic, the only winners in the case are the attorneys whose bill will grow hour by billable hour.
Legal Aid and pro bono clients are a different circumstance. Since no fees are involved, it may seem there is limited pecuniary benefit or risk. Even though he may not be running a tab with a lawyer, he must consider the benefits of resolving versus trying a case. There is a risk of an adverse result such as the loss of custody or property, or even homelessness. It is understandable that if a client has little it may be difficult to part with even a small portion of what he has and can ill afford to lose. Still, he and his attorney must make the effort to minimize the potential loss. He should treat his case like the bird in the hand rather than taking the risk to have the two in the bush.; they are often very elusive.
There are times when trying a case must happen and times when resolving issues outside the courtroom should occur. Part of being an attorney, a good attorney, is in knowing when to do battle and when to use diplomacy. Lawyers need to know that the best way to do business is to do justice. Getting cases to resolve in a fair and appropriate manner is the best advertisement for an attorney and the legal profession.
The legal system is often a winner take all arena where there are winners and losers. Well reasoned resolutions often create win-win situations in which each party gets some or most of what they really want usually at a fraction of the cost financially and emotionally. Perhaps, the time has finally come when lawyers and clients alike will understand the need to talk, to compromise, and to take their legal matters into their own hands.