Why Lawyer's Fail?

A good article in the Huffington Post today from Diana Mercer, a former lawyer, now mediator - author of, "Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life".

In today's post, Diana suggests "Why Divorce Lawyer's Fail".  It is a pretty good read, and raises some interesting points.

Diana points out that most new family lawyers don't actually make very much money.  In California, the median income for lawyers is $52,000.00 per year.  Stacked up against maybe a hundred thousand dollars in costs to get their degree.  She then points out that, to make money, clients expect you to adopt their pain and anger and to become the proverbial "mouth piece".

Diana suggests that when she couldn't stomach that anymore, and got tired of client's questioning her commitment if she didn't adopt their anger, she quit.  And became a full-time mediator. 

The implication in her article is that if you want to be honest with client's, you can't make a good living.

There is a point to what she says.. and it is healthy for a client to think about it, but, essentially, and with the greatest of respect, I think she is wrong.

At least from this divorce lawyer's perspective.

I've been practicing for some 28 years, and, through those years, if you asked ME why divorce lawyer's fail, I would suggest for two broad reasons - not just one:

a) The "Trial is Always Best" Lawyer: They adopt or profess to adopt their client's hurt and anger.  Candidly, I prefer the lawyer's who fake it - because the lawyers who actually adopt their client's anger are actually more irrational and more likely to lead their client's to a wrong course of action.  They refuse to take the time to explain, honestly, their client's downside, they refuse to be honest about the risks and uncertainties of litigation (the truly enmeshed lawyers probably don't even see it themselves), and at the end of the day their clients often get pounded in court, and even when they succeed, they are still bitter and unhappy, because they were never allowed to cool down their reptilian "flight or fight" brain to engage their rational thought processes to consider what REALLY was in their best interests;

b) The "Trial is Never Right" Lawyer:  These lawyers are scary sneaky, even perhaps, to themselves.  They have had a taste of litigation, and THEY didn't like the flavor.  They are afraid of the uncertainties, they are afraid of failure, and as a result, they over-state their client's risk, they push them to settlement, in all cases, not because it's truly best for their client, but because it's best FOR THEM.

I think, over the years, I've fallen into both camps, I confess.  I used to do a lot of trials.  I enjoyed it.  The adrenalin rush, the "field of battle", and I think I was pretty good at it.  But at some point, I became disenfranchised that I didn't ALWAYS WIN.  I took it very personally.  I argued and even, on occasion, yelled at Judges.  I engaged in bitter battles on the phone, by letter, and in the court house halls with fellow counsel.. and then, I felt that the risk was too great.. for me. 

And then, I found the middle ground.

I started doing collaborative law, and started attending annual conferences - all over the U.S. and Canada.  From New Orleans, to San Francisco, to Boston, to Washington, D.C., and this last year, in Chicago.  And I started spending more time thinking about what I was going, instead of just doing it.  And I talked to and learned from lawyers all over North America.

And here's the skinny for clients and lawyers (and if I'm wrong, feel free to tell me so):

1.  Respect your client.  They are not children.  You are not their God or the mothers.  They are the boss, and they have the right to make the decisions that impact their lives.  Your job is not to "take care of them", your job is to empower them to resolve matters in their best interests;

2.  Explain the foregoing to your client.  Let them understand, in now uncertain terms, that THEY are responsible for deciding their best course of action - not you.  You are an advisor.  And in that roll, you NEED to be neutral - because losing neutrality makes you a crappy lawyer.  You will explain that there are very few, if any, absolutes at law.  Every case presents risk.  And as much as they think they are right - there is another point of view that a court will consider.

The crass metaphor I constantly use, "I'm a cab driver.  I suggest where they might want to go and why, but at the end of the day, the longer I drive, the more money I make, so they need to take control and make the ultimate decision of how far this car is going.  I actually ask them to visualize a meter on my desk that moves around very quickly."  I explain the inherent conflict of interest between lawyer and client in an hourly retainer - the more I do, the more they pay.

3.  Explain to yourself, constantly, that the client's problem is not YOUR problem.  You didn't pick their spouse, you didn't write the laws, you are only ONE PART of the system.  This is to allow you to go home and be healthy with your spouse and your family and yourself.  This will allow you to be better and more neutral in giving your client the best advice.  This will allow you to go to trial when your client needs you to.

4.  Following point (3) above, go to court when your client needs you to.  Be fearless.  Judge yourself not with the outcome, but based upon an honest assessment when you look into a mirror - did you do your best, did you put in an honest effort, did you put forward your client's best case.  If you did - that's what matters.  And if the outcome is not to your client's satisfaction, you should be able to pull out the letter you wrote, probably more than once - explaining about risk and cost to your client.

And you move on.

My experience?  Clients appreciate honesty and respect. 

You will sleep well, you will be a better lawyer, and, actually, eventually, you will make a decent living.

Because you will garner respect of your peers.  They will know you as someone who is reasonable, and honest, and, when it comes to it - fearless.  And they will pass that on to others.

And your practice will build.

So - with all respect Diana - while I applaud lawyers who devote themselves fully to collaborative work or mediation - I don't think that lawyers, inherently, are built to fail.

Cost, Benefit, and Risk in Your Divorce

Now.. let me think..

Divorce is hard.

I know.  I've been through it, and for 27 years have been helping others go through it.

I understand, first hand, the emotional roller-coaster, the fear, the uncertainty, the anger, the sadness, the guilt.

It is not an experience that necessarily brings out the best in us, nor the most rational part of us.

As I've also learned in studying the neuroscience of negotiation, when we are at our emotional peaks of anger, sadness or fear - our rational thought processes actually break down.  Our rational brain actually becomes less functional as our "fight or flight" mechanisms kick in, and our limbic system takes precedence over our frontal cortex (which controls rational thought processes).

In the animal kingdom, this makes abundant sense.

As a lion comes charging out of the savanna at us, should we:

a) Run like hell to shelter; or
b) Stop to consider the relative speed of the lion to our own potential running speed, to ask ourselves whether or not a lion can climb a tree, swim across a stream.. but, then, again, considering the relative depth and speed of the river's current and whether a death of being eaten by a lion would be quicker, and therefor preferable to a death to drowning...

You get my point.

Our limbic system evolved to allow us to make quick, instinctual decisions in the face of a life-or-death emergency.

And because of that, not only does the limbic system become engaged in such an event, in fact, to assure that we don't sit down and contemplate our options as the lion charges towards us, our frontal cortex, our rational brain, actually shuts down to give the limbic system precedence.

Now.

Consider that in the context of divorce.

Over and over again in my 27 years as a lawyer I have seen first hand the downside of the "fight or flight" reflex when applied to making decisions in a divorce action.

Anger.

Fear.

They so often lead to irrational, impetuous, and damaging decision-making.  Emptied bank accounts, complaints to Revenue Canada who, in turn, reduce the family assets precipitously, and, worst, children being drawn in to the dispute by parents who "need to explain what is going on" to them - typically in some warped pseudo-reasonable fashion that helps them understand how half of their parents are sadistic hateful creatures.

The limbic brain kicks in, the cerebral cortex shuts down, and battle ensues.  More often than not, to no one's benefit but a couple of divorce lawyers who watch their billings increase dramatically.

Much as I enjoy my ability to support my comfortable lifestyle, I recommend giving as little money as possible to your divorce lawyer.

Which means forcing down your "fight or flight" reactions, and ramping up your rational thought processes.

And, yes, I know it's not easy, but it is eminently possible.  By force of will.  By obtaining counselling to help you understand that whatever you are dealing with it is quite certainly not an immediate life-or-death situation.  You have time.  Your life will go on post-divorce.  It will get better.

If you can't get to a counsellor immediately, make a list.

"A list of what?" you may ask.

It doesn't really matter too much, actually.

During a course on negotiation, I picked up some excellent advice from a psychologist-turned-lawyer who pointed out that the process of making a list REQUIRES engagement of the cerebral cortex, of the rational thought brain. And it doesn't matter too much what your list is.  Groceries to buy, possible future holiday plans,  favorite 70's songs..  just make a list.

It will kick-start your rational brain and begin to shut down your limbic brain, and will make reasoned and helpful decisions much more possible.

Which, at the end, leads to the point of my blog today.

The function of a party in divorce is, at its simplest, taking some time to consider in a very rational way, the costs, the benefits, and the risks or whatever your course of action is.

Cost?  Well, lawyers are, at the end, in business.  Unless you've won the lawyer-lottery, you are paying your lawyer.  And as I mention over and over again to my clients, the inherent reality of that creates an inherent conflict of interest between every single lawyer and their own client.

At it's simplest, the reality is that the more you fight, the more your lawyer earns.

That bears repeating.

The faster you settle, the less money your lawyer makes.

Think about that FIRST, before all else, and keep that in mind whenever your lawyer gives you advice.  Because, unfortunately, the costs of a divorce lawyer have increased quite a bit over the last couple decades, and a full-blown trial can cost you tens of thousands of dollars. 

Tens of thousands of dollars that you could use to put your kids through college, that you could use to fund a trip to Rome or Paris, that you could put in an RRSP and save for retirement.

So, to begin with consider "cost".

And remember - the "cost" isn't simply financial.  It is also emotional and physical.  Stress takes a toll on our minds and bodies.  And it clearly takes a toll on our children who watch it - even if those children are adults.  So, when you are putting together your ledger of a cost/benefit analysis of your proposed course of action, put a very real value on the value of certainty and resolution.  Of how it will feel to move forward and put this chapter behind you.

Benefit?  Consider what you are truly fighting for.  Do you really need possession of the house - or is it more than you want it so your wife or husband can't get it?  Is your action going to provide something worthwhile, or is it just perpetuating a battle?  To be sure, there are times where litigation is warranted and necessary.  But be realistic in asking yourself  whether paying $10,000.00 to obtain $20,000.00 is actually a good decision, when you take other factors into account.

Risk?

This is really part of the cost/benefit analysis - but I separate it, because it is so often ignored by clients and even their legal counsel.

How "guaranteed" is the outcome of my proposed course of action?  Generally, my experience in litigation is that there is no such thing as a "guarantee" in court, and if your lawyers says there is, they're probably lying or incompetent.

Judges are human beings.  They have their own idiosyncrasies, their own strengths and weaknesses, and their own biases that they bring into the court room with them.

Family law, more now than ever, is a process in which, most often, a Judge can do pretty much whatever they want.  Most legislation allows them to make decisions which are "reasonable", which are "in the best interests of the children", which, at the end of the day, means pretty much whatever the Judge wants it to mean.

So - as much as your mom, or your close friend, or your lawyer makes you feel that you have a "no lose" case - trust me, you don't.

I have often said to a client who is suggesting they have to go to trial over some issue, "Would you go to your bank today, withdraw or borrow $10,000.00, and to go Las Vegas and put it on "red" on a roulette wheel - which gives you almost a 50/50 chance of success?

If you wouldn't do that - you might want to think twice about running a trial.  Because the odds, typically, aren't much better than that.  It's a crap shoot, a roulette spin, take your metaphor - the point is, litigation is inherently uncertain.  And it's expensive.  And it's incredibly stressful.

For me?

It's great.  I enjoy the adrenalin rush, the combat, the war of wits with fellow counsel and the Judge.  And because I am so transparent with my clients regarding cost and risk, once I step into the court room my stress is greatly reduced, personally, because I happen to think I'm pretty good at what I do, and I feel I've given my client the best advice possible to understand the risk of that battle.

But I generally don't recommend it.

I used to carry out two to three Queen's Bench trials per year - now, it's more like one every two years.  Even though I feel less stress and more confidence, and feel, quite certainly, that I'm better now than I was 20 years ago - I also understand more clearly the risk of litigation - and I'm better at helping my clients understand that risk.

So less trials.

And if this blog helps you avoid a trial - well, it's 30 minutes well spent. 

Even if I didn't get paid a dime for the advice. 

(Next blog: Don't Over-Estimate How "Rational" You Are in Divorce)

Why "The Learned Divorce"?

Why is this blog here?

Well, after being called to the Alberta Bar in 1986, I've been a family lawyer now for about 27 years, and in that time, I've gone through a generally amicable, but very painful divorce myself, and between my own life experience and my experience as a family lawyer, I think I've learned a few things over that time.

And, to be honest, a large part of my practice includes telling people truths that I don't think lawyers typically share with their clients.

So - after seeing many of my clients responding very positively to my thoughts, my experience, and my insights - it seemed a natural to share those ideas in a broader way through a blog.

So here we are.

Chapter one.

Page one.

The first thing I would share with those who have somehow managed to find this blog is that while no one wants to go through divorce, and while every divorce is painful and difficult, it is possible to survive it, and in fact, learn from it.

"Learn"?

Definitely.  One comment I will make in general is that, typically, my clients fall into one of two categories.

i) Those who critically examine their own participation in the divorce.

ii) And those who do not.

The first group tends to move through divorce in a healthier fashion, and, in my experience, tends to be happier and more productive post-divorce.  They may be abused, they may be the victims of infidelity, but even in the face of that reality - they still take the time to say, "Did I contribute to the problem?"  And that contribution may, simply, have been nothing beyond making a bad choice of partner.  Or it could have been more - every relationship dysfunction is unique unto itself.

The second group are the "victims" of divorce.  And I put "victim" in quotation marks because their inability to see beyond themselves as "victims" makes them unable to critically examine how they got from the marriage alter to the divorce lawyer.

They see the other party as the start-and-end of why they are in my office, they are typically angry, they are consumed with a desire for "justice", and they are very demanding that two things happen:

a) That they get everything that they have coming to them; and

b) That the other person "pays" for the wrong they have done.

This last group is an unscrupulous lawyer's dream.  They will easily be lead into never-ending litigation or negotiation, which means a very high dollar-per-client return.

You would be shocked how often I have said to clients, bluntly, "I'm very concerned that the only benefit of this course of action will be an increase in my bank account."

And how often I actually argue against taking a course of action which will inflate my billings and receipts, but which, in my best opinion, will be counter to a client's own best-interests.

If you are in divorce, or you are contemplating divorce - take a good look at the foregoing.

And, if you can, honestly ask yourself, "Which group do I fall into?"

And, if you remember nothing else, remember this:

Your divorce lawyer is not your friend.

They are in business.

They do, no doubt, have genuine empathy and concern for you - however, they are in the business of earning a living - and invariably, the more you argue the more money the lawyer makes.

And because of that, inherent in every piece of advice your lawyer gives you is an inherent conflict of interest between a lawyer and their own client.

At it's simplest, it is this:

The more you fight, the more money the lawyer makes.

The quicker you settle, the less money the lawyer makes.

So - remember that, and think about that.  Consider carefully that the decisions you make are made rationally, based upon your own consideration of the cost/benefit/risk analysis of the next step in your divorce.

Moving through divorce is not about "getting everything you can", it is not about "justice" - it is about moving through a painful and unpleasant chapter in your life, to the next chapter.

The clients, in my experience, who understand this seem to pay me less money, and seem to end up happier.

A true story.

A client came to me after a failed collaborative divorce effort - many, many months, and tens of thousands of dollars in legal fees came to naught.  He came to me angry and bitter because his wife refused to agree to share equally her business built during the marriage.

He felt that he had contributed equally to their marriage, he felt that it seemed manifestly unfair that women expect to receive 50% but that, because he was a man, he should be denied that same entitlement.

And after listening to him explain his feelings, I said to him:

"50% is over-rated."

He looked at me, actually somewhat angry that I was coming across as "soft" I think.

And I said, "Look.  I can get you 50%.  But it may take a year or two of litigation, it may cost you $40,000.00, and it will most certainly require a lot of time in my office, in discovery, and in court.  On the other hand, what if I told you I could get you 45% in a week?  In 30 days your divorce will be over, your legal fees will end, and you can spend the next two years doing things you enjoy instead of waking up every day wondering and worrying about your divorce and spending hours and hours with me?"

And his whole disposition changed.

He admitted he had never looked at it like that. 

I suggested to him that clearly his wife appeared to feel that she needed to obtain an "edge" in the settlement to move forward.  The question was, how big a deal was it for him to get "justice"?

In the end we settled at about 47%.

Signed, sealed and done in about 45 days, start to finish.

And the day he came to see me to sign his settlement agreement, he was giddy, because he realized that he had made a choice which had saved him money, and more importantly, had moved him beyond his vision of "win/lose" to a vision of moving more quickly to the next, happier chapter of his life.

Did he "win?" from the point of view of the outcome financially?  Many lawyers will say "no".

I say, "yes".

And I would bet, dollars to donuts, that his ex-wife is not a particularly happy person post-divorce.

So - think about his example if you are in divorce or contemplating divorce.

Are you allowing your "victim hood" to get in the way of your own happiness?

Are you allowing the blind effort at "justice" to prevent you spending the next two years or more or your life doing something more interesting and enjoyable than sitting in your lawyer's office?

Hopefully not.

(Next blog, "Cost/Benefit/Risk")