Lawyers as problem solvers
“It is said that Lincoln was a skilled lawyer and a formidable opponent in the court room. And yet he was keenly aware of the limitations, unpredictability and risks of pursuing litigation, even if successful. Lincoln encouraged negotiation wherever possible. He was able to set aside his own ego and emotions and put his clients’ interests first.” So writes John Sturrock in the Scotsman.
It's this last sentence that I want to write about. This suppression of the adviser’s emotional profile to permit the elevation of the client’s interests.
At its simplest, the thought I want to express is that true negotiation, mediation, collaboration is really very hard work for the adviser. The base line for these remarks is that all modes of dispute resolution in family law are highly demanding for an advising lawyer acting in the client’s best interests: this is difficult work and my reflections are comparative not absolute.
My observation is that the lawyer’s preferences for attention to detail, rational analysis and linear procedures underpin the whole process of litigation. Litigation contains built in protections for our clients from many of the risks that arise from more informal approaches. Responsibility for the outcome of the case rests in the hands of the Judge or Sheriff. Assuming competency in oral and written advocacy, the lawyer’s primary responsibility in litigation is sensible, diligent preparation. With sufficient experience, skill and hard work, court work can be, emotionally speaking, the easier option for the lawyer.
By contrast, problem solving for our clients often requires more from us because everything is new, every time. We need to listen actively to our clients to hear (really hear) what they want to achieve. Our natural preference to fit our client’s aspirations into the existing processes must be suppressed, along with much of our training. If we are to help our clients to see where solutions might lie, then we have to be willing to see things from other perspectives (it’s possible that the other lawyer might be right about some things). There is no prescribed process, so creative and lateral thinking are necessary. The emotional and mental work required to move from dispute to resolution is exceptionally demanding, for lawyer and client. Even once that shift has been made, there is huge energy and technical skill required to pull together all the threads to weave together a comprehensive solution.
Why am I saying this? Well, I think that we need to be conscious of our own preferences, particularly the subconscious ones. Simply being aware of something changes our relationship to it.
In these times when everything has changed at pace and without warning it is sorely tempting as a lawyer to default to litigation mode. However, the Scottish courts won’t be a functional forum for a long time to come. We ought to keep up the pressure on government to invest in making litigation a viable option for those times when it is the appropriate forum. But we ought also to make the most of the other forums that are available, being conscious of our own default preferences and willing to do the work to displace them when that’s right for our clients.