by Laurie Israel, Esq.
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Practicing law requires many skills. Surprisingly, only one of them is a knowledge of the law. This article summarizes my reflections on practicing law after many years of experience, and the many disparate elements that come together in addressing clients’ problems. You may be surprised at some of my comments.
1. Your Client is Your Partner.
Virtually all my clients have contributed much to the solving of their own problems. My clients are in a better position to know all the facts and circumstances of their situation, and have always given much thought to it. Opening up to your client’s expertise in his or her own problem can be a very effective way for you to begin to be able to provide helpful input.
I respect my clients’ intelligence and good sense, no matter what walk of life they come from. I believe that all people are smart and have a great deal of inherent wisdom. My clients seek my advice because of my special skills in problem-solving and my knowledge of the law. By partnering with my client, we can both do a better job, because there are two of us working on the problem.
2. Find the Way of Least Conflict.
What I do at work most of the time is resolve conflict. At the heart of the legal profession is conflict, and lawyers are trained conflict resolvers. Some lawyers use traditional techniques of resolving conflict through positioning and litigation. This definitely has its place in some situations. Some attorneys also use techniques termed as alternative conflict resolution (“ADR”). These lawyers often resolve conflict through collaborative law, mediation, and techniques using both of these methods.
Although I am a lawyer and chose to be one, I actually dislike conflict. I try to avoid it whenever possible. As it turns out, this can actually be a very good way to resolve conflict. First of all, it is actually often possible to find a solution that can satisfy both sides. When you can satisfy both sides, then the solution to the problem or dispute is not a zero-sum game where if one party wins, the other party loses. A good way to find a mutually agreeable solution is by focusing on the parties’ interests rather than their positional stances. See if any bridges can be built between those interests. Try to have the opponents make deals and trade with these interests. Lawyers do well when they find the most effortless and peaceful path to solutions of problems and disputes.
3. Ask Open-Ended Questions.
Skillful interviewing is the key to finding out the facts that are crucial to solving your clients’ problems. Try to understand what your clients mean ? this will not always be what they are actually saying. Read between the lines. Listen very carefully. Follow up on inferences. If you cut short lines of inquiry you can miss a vital piece of information.
A good example is when I found out at the end of an hour interview with a client for estate planning that she was legally married. (The facts of this scenario have been altered to preserve professional confidentiality.) The fact that she was married completely changed her situation and affected important aspects of my advice to her.
A very good question to ask a client near the end of the interview is “Have you told me everything you think is important for me to know?” It is amazing how often this question leads to valuable information. By eliciting your client’s answers, and not imposing yours or foreclosing your client’s by the way in which you question him or her, you will always find out important things and facts that that you would have missed. This is crucial to your being able to effectively and completely address your client’s issues.
4. Give Good Advice About Compromising.
Effective lawyering depends on educating clients into reasonable positions and letting them know that compromising is sometimes (perhaps often) winning. Having said this, it is nonetheless very important to let your client tell his or her “story.” Bear witness to what your client is saying. Sometimes listening to what hurt your client is a very important part of the professional relationship and begins the healing process for your client.
Give your clients a “reality check.” If any of their thoughts are unreasonable or untenable, let them know. Mold your client toward the idea of compromise (if compromise is possible) early in the process (after they have had a chance to tell their story). Do it gradually by educating your client on the downside of taking an inflexible position. If you think your client is wrong about the possible results of a situation, tell your client, and explain why you think so. Don’t sit silent at a four-way meeting with opposing counsel and opposing party if your client says something dead wrong. If you can gently say that you do not think he or she is correct as a matter of law, you’ve moved the process forward by being truthful and you (and your client) will have gained credibility with the other side.
5. Dig Your Heels in When You Have to – But Politely.
Always seek to maintain good relations with opposing counsel, even on little things. By building trust, rapport, and cordiality with the other attorney, the process of solving problems and overcoming impasse will be easier and much more likely. It is true in law as in life that (as my mother wisely said), “You catch more bees with honey.” This is an absolute truth in the legal profession. It happens all the time. With this type of groundwork, when you need to dig your heels in for your client, do it respectfully, politely, and unemotionally. Because you have not “cried wolf” previously about unessential things, you will be listened to by the other side about important things, and you will be taken seriously.
6. Don’t Withhold Advice Just Because You’re Not Sure.
Sometimes the law is not clear, or the results of actions taken may not be clear, but give a client all the possible scenarios so that the client can evaluate a path he or she chooses to embark upon. Lawyers must give the clients the decision as to how to proceed. However, when asked, “What would you do if you were in my position?” be honest. Lawyers are trained to spin paranoiac fantasies to present to their clients. But don’t get carried away and try to give your client some probabilities of any of these fantasies actually happening. This will allow your client to make his or her own evaluation of the risk and decision as to how to proceed.
7. Don’t Jump to Solutions.
Creative pondering is a good thing. Solutions come from many places, even in your sleep or in the car when you are commuting. The nice thing for your client about pondering during off-hours is that it is unbillable time. It is often the most creative time you spend on a client’s matter. Believe it or not, lawyers worry about their clients’ situations and want to make it better. That’s why we became lawyers.
Not jumping to solutions is a very important part of our job. If you jump to a conclusion too early, you may have foreclosed many better and more creative solutions that take a little more time or thinking to get to. Let time do its work.
8. Don’t Get Personal.
The relationship of attorney and client is very akin to the relationship between therapist and client. That’s why we are called counselors. As in a psychotherapeutic relationship, it is almost always a mistake to bring your own current life or life experiences directly into the discussion between you and your client. Your client has come to your office to deal with his or her own issues, not yours. Anytime you step away from your client’s issues and into your own life (even if your personal experiences are relevant to your client’s problem) you have broken the attorney/client relationship. You can never fully recapture the trust of your client once you have done this. Keep focused on the client’s problems and don’t bring yourself in the room.
9. Make Sure Your Client Sees Your Value.
People generally don’t like to pay attorney’s fees. It is very important that your clients feel that they have received value for what they have paid you. Don’t send a bill until you have accomplished something of value. Own up to your mistakes and rectify them on your own time. Make sure that your clients’ money is being used wisely and in the most cost-efficient way. In your interactions and communications with your clients, detail the progress made so they understand what you are doing for them. Make sure the client is satisfied with his or her interaction with you.
10. Make an Independent Assessment of the Facts and the Law.
It is important to get a clear sense of the facts of your client’s situation. A good place to start is what your client tells you. It is also important to obtain facts independently, and also through opposing counsel, even though some of these facts may not be what you want to hear. The more fact-finding you do (even if some of the facts conflict), the more able you will be to work out a solution.
Ascertaining what the law is can be complex. Always go to the source (case, statute, or regulation) and make your own independent assessment. If you rely on secondary documents, you may be thrown off-track. Remember that two things are true: the law is a seamless web (i.e., everything is intuitively and logically based), and the law is sometimes counter-intuitive (you cannot always rely on logic to get to the result).
Copyright ©2006 Laurie Israel.
on both prenuptial and postnuptial agreements. She works as a consultant and mediator
nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative
law, estate planning, probate of estates and trust administration, as well as mediation and, in
Massachusetts, providing counsel for couples entering into prenuptial agreements. Laurie is
one of the initial practitioners and developers of the field of marital mediation, the practice of
using mediation to help couples solve marital problems and improve their marriages. Laurie is a former board member of the Massachusetts Council on Family Mediation and the
Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation,
marital mediation, and prenuptial agreements. You can find her articles on www.ivkdlaw.com,
Huffington Post, and Mediate.com. She is the author of the book “The Generous Prenup: How
to Support Your Marriage and Avoid the Pitfalls,” available on Amazon. Laurie is frequently
called upon by attorneys and mediators to share her expertise, through giving both formal and
informal presentations, on the subject of prenuptial agreements all across the country. You can
contact Laurie at laurie@laurieisrael.com. Her website is www.laurieisrael.com.