Much has been written about how to be a more effective lawyer in the modern age. If one was to seek to sum up what most lawyers are seeking to achieve it might be this: how you can get good results for clients and make money? This is in fact the sub-title of a new book by Professor John Lande of the University of Missouri and it is more than a clever marketing ploy. The book (main title: Lawyering with Planned Early Negotiation) is an important work, capturing in a common sense yet profound way what many lawyers are already trying to do and what many more will need to do to survive. Its value lies in taking a systematic approach to the subject of better negotiation, offering sensible guidance and a plethora of practical forms and checklists.
The book’s central proposition is that, whatever their area of practice, most lawyers engage in negotiation. It also assumes that it is usually preferable for clients to resolve legal matters sooner rather than later, especially if this reduces cost and produces an acceptable result. Achieving this for a client, according to Lande, should lead to more referrals, better job satisfaction and more income for the lawyer. He offers practical advice about how to assess each case, analyse risk and decide which to resolve early – and which not.
He does not shirk from what he calls the “prison of fear” that early negotiation will harm the clients’ interests, give the appearance of weakness or result in loss of income for the lawyer. He emphasises the importance of gathering critical information. He faces up to the culture of maximising billable hours – more a US phenomenon than Scottish? He recognises that negotiation is often hard, even when lawyers and clients are trying to be reasonable. The very process of being in dispute can compound the conflict for all sorts of reasons.
Lande makes the point that, given the proliferation of dispute resolution processes, clients now have more choices and lawyers need to understand these, and be competent in advising about and representing clients in them. Broadening this to a general approach to the practice of law, Lande poses a series of pertinent questions for any lawyer - or aspiring lawyer:
What is the lawyer’s job? What should be the relationship between lawyers and their clients? How should the fact that only a small fraction of cases go to trial affect how lawyers handle legal disputes? What interests do clients have in addition to protecting their financial positions? How can lawyers assess and protect their clients’ interests? How can lawyers most effectively represent clients in negotiation and mediation? How can lawyers help clients choose and shape appropriate dispute resolution processes? Regardless of the kinds of cases they want to handle, what kind of lawyer do they want to be?
The book describes how to establish good working relationships with clients, understand their interests and manage their expectations and fears. Obvious perhaps but not necessarily easy, especially if that involves making difficult decisions. It focuses on maintaining a good personal relationship with the lawyer (and possibly client) on the other side, especially in contentious situations – even to the extent of establishing a protocol for consultation before taking actions which might be perceived as adverse. It offers advice on dealing with lawyers with whom you have recurring problems – a not unusual situation in tight-knit legal communities.
Positional bargaining (“let’s stick it to the other side”) and interest-based negotiation (seeking to maximise gains on each side) are contrasted. Preparation and planning are emphasised – how often do we begin a negotiation without really thinking through our strategy and objectives? The role of third parties to assist resolution, such as neutral evaluators, private adjudicators and mediators, is explored.
Offering “planned early negotiation” as part of a portfolio of services may seem sensible. Certainly, collaborative law features in some family disputes. But how many lawyers do so in a systematic way? And how many clients would be attracted to those firms which made a virtue of early resolution of disputes and cooperative problem-solving from the outset, all to reduce time and money for clients, minimise risk and enhance goodwill? The answer to that question may help define the shape of legal services – and raise fascinating ethical issues - in the years to come.