02/08/2010
by Michael Freed, JBA Board of Governors Member
As lawyers, we are skilled at helping our clients get their ways. This is, in general, our stock and trade; it is what we are trained and paid to do. At times, however, our clients are better off with (and we therefore are better off serving them in) seeing beyond the “victory” they seek over another party to a true solution that will place them (and perhaps the other party too) in a more stable position. I suggest that the current economy — more than ever — presents such opportunities.
Whether you are a transactional attorney or a litigator; whether you represent business people, families or those accused of crimes, less and less of our clients can afford “scorched earth” legal tactics or what it takes to “prevail” at any cost. And, even those that can, may do so at the expense of a better opportunity.
The present economy has more parties than usual embroiled in disputes, with more at stake, but without the resources or time to exhaust the resolution process. Under these circumstances, it is incumbent on us to employ skills and strategies for, and with, our clients beyond endeavoring to win on every issue, motion and claim.
A myriad of non-adversarial skills are necessary to engage in this style of lawyering.
First, you need to know — truly know — your client’s position. What are its (his or hers) goals, concerns and plans? How does the business operate? How is it capitalized? How does the matter at issue fit into the big picture? Will litigation (even if successful) adversely implicate other aspects of importance? Are there loan covenants that are implicated by issues that could be exposed (or at least alleged) in litigation? Are there other ways in which issues that will be exposed in litigation could be damaging or disruptive outside the litigation? If there is more than one decision-maker or principal, what are the personalities of each and are they in agreement on how the matter at hand should be resolved? Are there emotions or egos attached that could be impediments or distractions? The information derived in answering these and like questions will enhance your client relationship and provide perspective to assist in helping your client prioritize and creatively problem-solve.
Second, research the same issues about the adverse party. This will provide you with the informational upper hand in interactions, but more importantly will offer insight into what makes the other side tick — all of which is critical to finding creative, cost efficient solutions.
Third, analyze the applicable legal framework (the facts, any governing documents and the law) not only to support your claims or positions but also to find opportunities in the framework beyond the zero sum game of one side prevailing over the other. For example there may be tax benefits that your client can assist the other side in obtaining through a particular structure that has no disadvantage to your client. Or, the other side may be able to afford your client a contractual opportunity that is of great benefit to your client and little or no cost to the other side. There are even legitimate, creative solutions to criminal investigations and family disputes that can obviate the need to have a fact finder simply decide your client’s fate. Looking outside the box of the immediate disputed issue can uncover this type of opportunity that may lower the stakes and the competing demands to prevail on the issue at hand.
These strategies are not mutually exclusive with zealous advocacy. In fact, they are complimentary.
The bottom line is that not every client can afford the time, expense and collateral impacts of winning at any cost. And, many that initially set out to do so, lose the necessary fortitude along the way. Looking for creative resolution opportunities early and often will create value no matter the direction that is taken.
