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.