I just wrote this post on the Kluwer Mediation Blog on this subject. It summarizes empirical research showing the huge chasm in perspectives between many lawyers and their clients. Lawyers often focus only on monetary issues in legal disputes, which drives many of their clients crazy because they are also very concerned about a wide range of non-monetary issues.
Litigation often is extremely stressful for clients, and the process aggravates feelings of loss and grief, which interfere with their ability to negotiate effectively and reach agreements. There is a chronic problem in legal practice of lawyers not listening and communicating well with clients. Recent law graduates are “woefully unprepared” to work with clients but even many highly experienced lawyers serve their clients poorly.
That short post separately describes things that lawyers serving as advocates and neutrals can do to promote good inter-planetary communication. I think that all law students would benefit from reading it, and I encourage you to require or recommend it in your courses.
The present post addresses two related subjects. First, it provides an extended excerpt from a great empirical literature review about litigants’ perspectives about civil litigation. Then it asks how law faculty can most effectively integrate these insights in our teaching so that students “get it” and find it useful when they are in practice.
Litigants’ Miserable Experiences in Litigation
I once wrote that many litigants would describe litigation as “nasty, brutish, and long,” riffing on Thomas Hobbes’s famous phrase.
A LOT of empirical research validates that observation. As I noted in this post, litigation offers many potential benefits to individuals and society – and it also often creates great stress and other harms to parties’ intangible interests. That post summarizes research presented in the LIRA book.
In writing the Mars-and-Venus post, I ran across an earlier article providing more detail about the effects of litigation on litigants: Tamara Relis, Civil Litigation from Litigants’ Perspectives: What We Know and What We Don’t Know About the Litigation Experience of Individual Litigants, 25 Studies in Law, Politics and Society 151 (2002). She concludes that “litigants seem to suffer in some way at nearly every stage in litigation, whether precipitated by lawyers, judges, courts or simply ‘the system.’” Here are excerpts from that article:
[Their] experiences are basically reconstituted to fit into legal compartments that generally exclude many matters often most important to litigants. Moreover, clients receive little help from lawyers in dealing with the emotional realities of their circumstances. …
[C]lients often do not receive adequate costs information, at least not early on. Hence, clients in diverse dispute types commonly perceive charges as extortionate or unfair. Moreover, many do not feel they receive value for their money. …
[L]egal costs, normally out of litigants’ control, often end up being far more than they expect, despite little they can do about it. …
[Litigants] commonly suffer communication and comprehension difficulties thus frequently are confused by things they hear from their lawyers, and may not understand what is going on. Equally, despite their strong need to hear about how their cases are progressing, litigants often feel insufficiently updated, consequently feeling alienated and badly treated. …
[Some litigants] either hear about the insincerity of negotiations and/or perceive negotiating processes as unfair, sometimes viewing their focus on money as trivializing issues most important to them. Furthermore, numerous litigants feel left out of negotiations and consequently many feel obliged to accept any resulting offers (particularly due to much stress, pressure, worry and incessant costs fears). … (emphasis added)
[N]otwithstanding the emotional value of trials, large numbers of litigants suffer severe anxiety and stress, both before and throughout their time in court. This is exacerbated by the fact that litigants generally have misconceived expectations about courts, what courts do and how they do it. Once inside courts, litigants lose total control over their cases, are permitted only to advance truncated versions of their stories (despite their significant need to express themselves) without comprehending why, and experience feelings of frustration, disappointment and humiliation because of how they perceive they were treated.
How Can Law School Faculty Prepare Law Students to Practice Helpfully?
I am not teaching any classes of my own – no attendance and no grading. Yippee!
But I may be sort of teaching some of your classes. I aspire to being a superspreader of Moffittian germs of Negotiation School. Since law schools won’t be substantially reformed to address the realities of legal practice working with clients, it is up to individual faculty to do what they can in their own courses.
I write many blog posts with students and faculty in mind. These are shorter and easier to read than most reading assignments – and they’re free. I have encouraged colleagues to use multi-stage simulations, Stone Soup interview assignments, resources to help students do litigation interest and risk assessments, videos, and other resources, including more here.
I hope that faculty adopting my suggestions would produce good results, but I don’t know how much that happens.
Faculty in our field often face two particular challenges. First, how can we teach things that resonate for most students without alienating a lot of students who think that our lessons are a waste of time because they’re obvious, not real law, etc.? Second, how can we teach things that graduates will use successfully in practice? I think about judges in dispute resolution competitions and even upper-class students disparaging what is taught in law school as not what happens in the “real world.”
We have struggled with the latter challenge, trying to teach things that both reflect our values and also that graduates will be able to use in the practice cultures where they will work. For example, some colleagues don’t want to legitimize “evaluative mediation” techniques but recognize that mediators and lawyers often feel that this is the only acceptable approach in their work. To address these problems, I encouraged colleagues to teach students to strategically combine specific elements of traditional theoretical models, teach students to manage the counteroffer process, and include lawyer-client relationships in simulations, especially in longer simulations.
I’m curious to hear how faculty have successfully handled the two challenges I mentioned. In your experience, what ideas, values, and techniques have you taught and what pedagogies have you used that really “worked”? I’m particularly interested to hear of any feedback from graduates about what you taught that they were able to use successfully in their work.