We often hear lawyers referred to as problemsolvers. However, it is important to realize that even if a lawyer is highly successful in treating a client’s dilemma, it is often not enough. The truly effective lawyer goes beyond simple problem solving in order to help his or her client get on with life.
Two special resources inform the effective lawyer. One is “Legal Education and Professional Development: An Educational Continuum” (hereinafter referred to as the “MacCrate Report”) in which an American Bar Association committee enumerated and explained the fundamental values of the legal profession. The second is Stephen R. Covey’s books and lectures on the seven (now eight) habits of highly effective people.
The list that follows combines the prescriptions and advice of the MacCrate Report and the Covey habits. This combination is provided as a convenience to the reader. However, even though some of the principles are taken directly from one or the other of the resources, the reader is strongly advised to get the full impact by reading the original documents.
A highly effective lawyer is one whose client is satisfied not because the representative was an obedient “hired gun,” but because the lawyer was creative and truly helped the client (i.e. made a difference in the client’s life). Former Chief Justice Warren Burger referred to this as lawyers healing social conflict.
The operative tenet throughout the following list is Trust. The highly effective lawyer will earn that trust by pursuing all of the principles.
1. Treat your client as friend
Throughout the relationship, treat your client as you would want to be treated. The ineffective lawyer treats abstract legal problems. This is often referred to as perceiving the file as the client. The effective lawyer views the client as an individual person for whom there needs to be a “customized” solution.
Treating your client as your friend implies frequent communication. Under ordinary circumstances you should update your client at least twice a week—more frequently when there is relevant activity. Return calls received from clients, even pesky calls, as soon as possible. Nothing builds confidence better than the courtesy of promptly returning telephone calls or e-mails
2. Understand needs, not “wants.”
At the initial interview, clients are likely to communicate only what the client wants. However, there is a big difference between “wants” and “needs.” The effective law practitioner will spend sufficient time and questioning to find out what the client needs in order to resolve the problem and get on with life in a state of harmony with others involved in any conflict.
3. Communicate your fee structure.
Nothing builds distrust more than someone being charged more than expected. No matter how small the matter, and before rendering any service other than the initial interview, you should give the client a written explanation of the applicable fee structure. That writing should clarify the circumstances under which unusual expenses, or a change in fee structure, may be necessary. You should explain the fee structure to the client and then have the client acknowledge, in writing, that the client understands the potential fee computation. If circumstances arise that necessitate substantial additional fees, you should explain this to the client, in writing, and have the client acknowledge, in writing, the additional expense.
4. Explain confidentiality and the limits thereof.
Early in the relationship, you should explain to the client which communications are protected under confidentiality rules, and which are not. For judges and lawyers, confidentiality protections are set out in the court of jurisdiction’s rules. For some law associates and non-lawyer employees, the rules of professional confidentiality may be imputed from supervisors. In many cases, statements to non-lawyer practitioners may not have any confidentiality protections. In any event, you must explain limitations on confidentiality protection, whether those limitations are prescribed by law, rule, or the lawyer’s personal restrictions.
5. Understand the opposition’s needs.
As soon as possible, and throughout the entire association with a matter, you should make every effort to understand the opposition party’s needs, the satisfaction of which might resolve any conflict and allow the opposition to live in harmony with the client. Keep in mind that, like principle 2, this is about needs, not “wants.”
6. Explain needs to client.
Explain to the client your understanding of the client’s needs along with your perception of the opposition’s needs. Listen carefully to the client’s response to this explanation.
7. Always keep the end in mind.
Remember that in law matters, the end has three parts: (a) solving the client’s problem, (b) meeting the client’s needs, and (c) “healing” the client’s relationship(s). Similar to medical practitioners, law practitioners have the capacity to “treat” (i.e. develop a solution to legal problems), “cure” (i.e. meet clients needs) and “heal” (i.e. bring the client into harmony with opposition and with the community). The effective lawyer realizes that, if there is no “healing,” “social sickness” can easily return.
8. Try to sell your client a win-win philosophy.
Start by telling the client that your first responsibility is to the client, and you will do everything ethical in pursuit of your client’s needs. Then, explain that often the most important client need is to come into harmony and get on with life. This is best done through the pursuit of a win-win philosophy.
There is little doubt that convincing your client to pursue a win-win philosophy is the hardest thing one can undertake in law practice. Ordinarily the client will come in with a win-lose philosophy, with the client as the winner. The opposition will ordinarily have a similar philosophy but a different winner. The effective law practitioner tries to sell the win-win philosophy and suggests a solution that provides for the needs of both sides.
9. Develop a viable solution.
In virtually every legal relationship, including matters of conflict, there is a solution that satisfies the needs of all involved. Note: this is not a concession to compromise. Nor is it a solution that lies somewhere between the proposals of each side. Rather, it is a matter of the lawyer coming up with a proposal that concentrates on “needs” rather than “wants.” It is a separate but better solution that can bring about agreement. Stephen Covey refers to this as a synergy proposal.
10. Explain your procedure.
Even if you do not sell the win-win philosophy, explain how you intend to proceed. Whether or not the client agrees with your procedure, make sure that the client understands how you intend to go forward on the client’s behalf.
11. Go beyond solving the problem.
As noted in principle 7, the effective lawyer’s responsibility goes beyond problem solving to healing (bringing about harmony). This means going beyond defining legal principles in order to explore with the client the spirit of the law. It means being more than a “hired gun”—instead stimulating the conscience of the client—reminding the client to do the right thing rather than stopping at doing the legal thing.
12. Play it straight.
Don’t mislead your client, your associates, any tribunal, the opposition, or the general public. Don’t play “high-ball / low-ball” negotiation games. Work hard so that you know what your case is worth and then stay with it. Negotiate from the strength of knowledge, rather than from the weakness of speculation. As a highly effective law practitioner, you are not involved in some competitive game. You are a representative of a person who needs healing. If your client’s needs are realistic (tell the client if they are not) your client will find harmony in your pursuit of those needs.
Living all twelve of the above principles can be very challenging. However it is worth it. Adopting the values set out in the MacCrate Report, becoming an effective lawyer, helping a client to heal, and making a difference in a client’s life will create a “high” unlike any other. Such pursuits will make a lawyer proud to be a member of a noble profession