Legal Informed Consent Includes Knowing Your Legal Process Options

Dispute Settlement Counsel by Michael Zeytoonian.

"An educated consumer is our best customer.”

That was the memorable tagline for Syms, a successful men’s clothing retail store in the New York area years ago. It struck a chord for many reasons. A business that wants its customers to be educated on its products or services reflects honesty, transparency and a shared desire for quality and value. It respects and compliments the customers. It implies that the business wants its customers to be intelligent, do their homework, research and due diligence before coming into the store or office and doing business together.

Doctors and medical professionals use the phrase informed consent when they talk about the requirements they need from a patient before doing any kind of medical procedure. They want the patient to know exactly what is involved, what the advantages and disadvantages are, what the risks are and what the likelihood of a successful result will be. It’s not only about choosing the right doctor, but also the right course of treatment. Only then is a patient making an informed decision on the medical course of action to take.

It should be the same in the legal profession. The responsibility of the lawyer to obtain informed consent before a client decides which way to go in handling a dispute should be a requirement that is regularly practiced and complied with in a meaningful way. In some situations it is required, but not always. And sometimes this step of advising of a potential client on what his or her legal process options is often glossed over and not done thoroughly.

A potential client’s inquiry should be twofold: (1) First, the client should find out about the expertise of the lawyer or firm in the practice area(s) of law that are involved in the dispute. You wouldn’t hire a lawyer that does real estate closings and bankruptcy work to handle a workplace discrimination claim any more than you would go to an audiologist when you break your leg.

(2) Secondly, the client needs to be educated on what process options are available to him/her, what are their differences, pros and cons, which one would be the best process for the circumstances in this dispute and why. It’s this second piece, this informed consent inquiry that most clients and many lawyers don’t fulfill. You wouldn’t go to Syms if you were looking for garden tools, or even if you wanted your suits and shirts cleaned and pressed.

This informed consent requirement is not usually carried out, in part because the client doesn’t know to ask about process options. Even when he or she does inquire about process options, the response from most lawyers and firms would be to suggest one option. It’s only natural that mediators would suggest the mediation option and litigation firms would suggest the litigation option. That may not be so bad, as long as the client has also first been educated on what options exist, how they work and why they might or might not be a good fit in the situation. However, this informed consent step should never be skipped or rushed through.

When a client has chosen a lawyer who has the right expertise in the relevant practice area and is also educated about the various process option and has compared them, then and only then is the client making an informed choice as to process and lawyer. At this point, the client has real value and has increased his or her chances of reaching a really good resolution and outcome.

It is important to us at Dispute Resolution Counsel, LLC, that our clients are educated about their process options so they can make the best choice of how to approach resolving their disputes. We share in Syms’ belief that educated clients are great clients for what we do and how we do it.

                        author

Michael A. Zeytoonian

Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education… MORE >

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