|Oregon State Bar Bulletin APRIL 2012|
All lawyers want to help their clients. We help our clients by analyzing their legal situations and predicting the outcome of a court battle.
This is good, it is traditional, and it is necessary. But there is another way.
Throw away the heavy books of court cases and rules and let intuition and imagination help you to find a resolution of the conflict.
Once the lawyer stops thinking about litigation strategies and trial strategies, settlements and resolutions emerge as the mist rises from a dewy field in the morning. Intuition can tell one if a particular resolution is good or bad because it is just a name for applying quickly all the education and knowledge we have acquired over a lifetime. Imagination combined with attentive thought can lead to ideas that would never come to mind had the lawyer thought only about court warfare. It is much easier to do this if the lawyer is not at the same time thinking about waging war against the other party.
That is the whole idea.
Interest-based negotiation is related. In interest-based negotiation, the parties explore goals and desires not customarily expressed in court pleadings and negotiate according to their interests and those of the opposing party. Interest-based negotiation opens the door to creative consideration of what the parties want. See an article on the creative use of counteroffers to expand the interests considered in negotiation: Ayres, Ian, “Never Say No: The Law, Economics and Psychology of Counteroffers,” 25Ohio St. Journal on Dispute Resolution 603 (2010), an essay which includes advice on negotiating with lawyers and with cold callers and young children.
It is true that candid negotiations make the parties vulnerable and this is not always good. Treachery happens. Lawyers should consider whether candor is good in a particular case, or not.
When lawyers think creatively, they may explore remedies benefiting not only their clients but also other parties, and they may consider the welfare of the other lawyers too. This is more satisfying to lawyers and clients than settling on the courthouse steps and should encourage lawyers to continue to negotiate creatively.
Here’s a fictionalized example of creativity from my legal past: a client bearing the burden of an older husband who wanted spousal support came to me for a dissolution. They were active in the same charitable organization. They had two businesses and debt and interstate contacts. Rather than pounding through the law of alimony and appraising her prospects in court, I let my imagination work and suggested that she offer him disability insurance or long term care insurance. Rather than making a coy offer to my opposite, I sent her to an accountant to propose a division of the property that would maximize tax benefits and minimize interest payments. Instead of having a titanic struggle in divorce court, they could continue to be friends and continue to work at their charity, everyone would be happy, and the clients would pay their lawyers. These ideas may be obvious in retrospect, but they are not necessarily obvious to a lawyer looking at a client with a divorce petition in her hand.
Although it is good to throw away the tomes and treatises, there comes a time when the lawyer must drag back the heavy law books and conform a proposal to the law of the land. The law of contract, trusts, business organization, dissolution orequity may facilitate settlement. A case may become a transactional negotiation. In that transactional negotiation the lawyers might improve the tax standing of both parties. If court approval is needed, the agreement should be a document a judge can sign without stress, and if it is an agreement not requiring court approval, it should be enforceable and understandable. It may be necessary for a lawyer who fandangles a creative agreement to retain a different lawyer to civilize the agreement and draft documents that will stand up where they need to.
This method is suited for business disputes and dissolutions, for personal dissolutions, perhaps for personal injury cases, for some criminal cases, for some professional discipline cases and for cases where the parties have a continuing interest in each other. The author bases this method on actual recent cases, and has resolved criminal cases, but not civil cases, by applying these ideas.
Lawyers resist creative thought with the strength of vanadium steel because over the centuries they have developed the habit of analyzing every conflict in terms of the parties’ rights and liabilities and a prediction of what might happen in court. Then they set to work, sedulously, to influence what happens in court. It is helpful and sometimes necessary to make a conscious decision to think in a creative spirit and not with a bellicose mind in order to explore unconventional resolutions.
Creative resolution of conflict is not the same as mediation, in that a single lawyer working alone may generate and press to completion resolution of a case. Also, mediation is often only an improved method of considering conflicts that are still only viewed as contests of rights and possible court outcomes.
With all that said, a prudent lawyer should frequently make a parallel analysis of possible litigation results and possible conventional settlement results. From the beginning the lawyer should think about the alternatives — negotiating according to possible court results, as opposed to throwing away Blackstone (respectfully) and thinking equitably. Sometimes litigation is necessary to protect clients, or to retrieve something wrongfully taken. Litigation may satisfy the desire to get cash, promotion of principle, promotion of a related cause, deterrence of the defendant or the lawyers, or deterrence of different parties and lawyers. The lawyer should analyze alternative approaches and keep the client informed about them, to the best of his or her ability, and obtain informed consent to any course of action. The lawyer should continue to make these comparisons as negotiation continues, should continue to consult with the client, and should continue to obtain consent. At the end, the process should be repeated, and the lawyer should again compare a creative settlement with battlefield resolution. The lawyer does not want an unconventional settlement that is wildly less in economic value than a litigated settlement unless the parties thoroughly understand the economics and choose a resolution of lesser economic value. See RPC 1.1, (lawyer to have legal knowledge necessary for representation) and RPC 1.4 (lawyer to keep client reasonably informed and explain so client can make informed decision).
Since it is scary to propose unconventional settlements, it is most reassuring to continue to consult thoroughly with the client and obtain consent and proceed with a client who supports and understands the objectives.
A good question is whether lawyers today in Oregon and elsewhere throw away the books of trial law and negotiate creatively. Another good question is what methods besides consciously avoiding thoughts of trial help lawyers to think creatively. Does abandoning focus on combat unlock thoughts that would otherwise remain dormant?
Another good question is whether persons in conflict who are not lawyers use imaginative methods. Conflicts between businesses that want to remain on good terms, conflict within business organizations, conflicts between military personnel in wartime and at peace, and of course, ongoing conflicts between personal partners are all examples of disputes that are not resolved in court.
In sum, look at every conflict as a case where an imaginative solution may be the best way to help your client, but keep a side eye on the potential for litigation and conventional negotiation. If you do that, you may end up with happy clients and a satisfying law practice.
ABOUT THE AUTHOR
Roger Ley practiced law in Seattle from 1970 to 2007, when he relocated to Svensen, Ore., a rural community near Astoria, and joined the Oregon bar. He tries to use imagination in a manner consistent with the law of the land. His email address is firstname.lastname@example.org.
© 2012 Roger B. Ley