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.