Dispute Settlement Counsel by Michael Zeytoonian.
Most people have a primary care physician. But people and small businesses don’t often have a primary care lawyer. This primary care lawyer that your closely held or family business or non-profit organization doesn’t have is probably the most important lawyer you need.
I often analogize between how we approach legal disputes and how we make medical decisions. A vital starting point is to have a “primary care lawyer”, just as we have a primary care physician.
When you have a legal counselor on your team of trusted advisors, you are more likely to get good counsel early on about what to do when you are faced with a legal dispute, as well as about certain proactive things to do to avoid disputes. This is where good, effective dispute resolution begins – with prevention and wise counsel. One of my colleagues used this tagline for his law firm:
“The worst time to hire a lawyer is when you need one.”
Your primary care lawyer is probably not a litigator, just as most of our primary care physicians aren’t surgeons. Surgeons are trained and passionate about operating on patients; that is what they do. It is not their purpose to spend time on the patient’s health history and all the factors that go into making health decisions. That is the realm of a doctor who, above all else, knows his patients, their histories, family lives, job stress levels, habits and propensities. With that knowledge, the primary care physician is in a good position to quarterback his patients’ health care and help them make good, well-informed decisions.
I trust my primary care physician completely. He has taken the time to know me, my habits and goals, and what I can handle well enough to give me good options. He won’t be doing the procedure I need done. He is invaluable because he will advise me and suggest the right next steps. He may not have a surgeon’s gifted hands, but he is the most important doctor I have.
Likewise, when it comes to figuring out how to handle a dispute, you need a primary care lawyer to advise you and suggest the best options. You need “dispute resolution counsel” to look at your unique circumstances, assess the situation, consider the kind of person you are, the speed at which the dispute needs to be resolved, your financial and emotional bandwidth, your level of risk aversion, your priorities, your goals, etc. With that knowledge, he/she gives you a good recommendation on what to do, which process option to choose and tells you why. If you skip this step and go to a litigator first, the “legal surgeon” will likely take you down the litigation road. That is what he wants to do; it is what he believes in. That is what he is trained for, passionate about and good at doing.
More often than not, “legal surgery” (litigation) is not the best procedure for the client’s situation. There may be a need for litigation in the future, if less risky and less complicated options don’t achieve the desired results. At the outset of the dispute, you want to choose the option that would best fit the situation and the circumstances of the parties involved in the dispute.
One major difference between resolving legal disputes and addressing medical issues should not be ignored. When you opt for surgery and start the prep, nine times out of ten you end up having the surgery. But when you opt for litigation and start the road to trial, nine times out of ten you will never have that trial. The chances of that trial ever happening, despite the years of time, expense, collateral damage and emotional draining you have invested in it are less than 5%! Some time very close to the start of the trial (imagine yourself right outside the operating room, about to be wheeled in), your litigation lawyer will discuss why you should consider some options to trial and 95% of the time, you will opt for another negotiation-based process.
You could have chosen that option much earlier on in your dispute, if you had first gotten some solid dispute resolution counsel from your primary care lawyer. If only you had one at the beginning.
Like I said above, my primary care physician is my most important and valuable doctor. Your primary care legal counselor should be your most important and valuable lawyer. If you don’t have one, now is a good time to get one so that you can be proactive, well-advised and ready to make good, well-informed choices.
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