This post is in part a very belated response to a series of posts by Jim Belshaw (here and here). Sorry it’s so late, Jim! I do think about these things, but they take a while to percolate. What do people want out of their lawyers, and do lawyers provide these things?
Part of the issue is that law is intrinsically adversarial. An anecdote first: for Mother’s Day, Eaglet No. 1′s class told the teacher facts about their mothers which the teacher dutifully wrote down and published in a small booklet. I learned that my distinguishing features are that I like risotto, I watch Play School, and I teach war (with a question mark in brackets beside it). I think the teacher misheard Eaglet No. 1, who has a husky little voice and tends to mumble.
Then all my family were kidding with me, saying that law is a kind of war, it’s not really that inaccurate. Certainly, some lawyers regard litigation as war. When I was doing my articles, a litigation partner told me to read Sun Tzu’s The Art of War for tactical litigation hints (ignoring the bits about spying, which might get us into trouble…) Sun Tzu’s treatise is regarded as an important text on military tactics.
Really there are two aspects to legal services, however. There is the ‘front end’ – advising people what their legal obligations are, putting together deals that work and facilitating actions. Then there is the ‘back end’ – resolving disputes once everything falls apart. Part of the difficulty is that the ‘front end’ always has an eye to what happens if the deal falls apart. So they’re writing and advising not just for the client, but also with an eye to any future disputes in court.
In his post, Jim mentioned the way in which lawyers tend to put in all kinds of ‘boilerplate’ clauses in contracts, regardless of whether they are really appropriate or not. I suspect these clauses reflect past contractual disputes. Perhaps some person tried to get out of a deal by saying, “this clause just says ‘book’, it doesn’t say ‘books’, so I only have to supply one book.” (In all likelihood, they knew perfectly well that the deal was meant to encompass more than one book, but technicalities are the bread and butter of the law). So now many contracts include a boilerplate clause saying, “In this Agreement, references to the singular include the plural, and references to the plural include the singular.”
But I think also that lawyers sometimes forget what they’re supposed to be doing (which is facilitating the client’s choices and actions in a way which furthers their interests). Sometimes they get so caught up in the Art of Law that they get distracted. Recently I spoke to two friends who have moved out of the legal and financial service industries and are now working for former clients. They had a number of interesting insights. One said, “I don’t want to be told what to do. What I want is enough information about the various options available to me to make up my mind. Too often lawyers just say, ‘Do this’ and don’t run different options by you.”
They also observed that there was a tendency on the part of lawyers to be too combative (so that litigation was always presumed to be the first response a client wished to exercise in the event of any trouble). I’ve seen this before. When I repossessed houses, often, many of the mortgagors were unrepresented. But when they were represented, sometimes the lawyer representing them would file what is known as a ‘bare defence’, in which many allegations were simply not admitted or denied outright. Sometimes people (via their lawyers) would go as far as to deny that their names were as stated on the Statement of Claim or that they owned the property (and given that I’d taken all the details straight from the Certificate of Title, this was a pretty stupid kind of defence really). Where the defence was easily rebuttable by reference to documents such as the Certificate of Title, the mortgage and the loan agreement, we would usually file a summary judgment application, exhibiting the aforementioned documents. Of course, this took up more time on my part. Ultimately, the lender used the payout money from the mortgage to pay my fees as part of the costs of enforcing it. Why were these lawyers telling the defaulting mortgagor to do this? Such tactics were just a delaying of the inevitable, and ultimately, it was the mortgagor who paid for the time I spent responding to their claims, not the lender. If the defaulting mortgagor could afford to pay a lawyer for the costs of filing a dummy defence, I wondered why they were hiring a lawyer; he or she would be better off paying the arrears. Interestingly, apparently Victorian Civil Procedure laws have recently been amended to prevent the filing of bare defences. I can’t say I’m particularly sad to see the demise of such defences (I’m sure someone will come along and tell me why I’m wrong).
Usually by the time a repossession case had arrived on my desk, options such as payment plans and the like had been exhausted. Really there were five options open to defaulting mortgagors: (1) pay the arrears if possible; (2) refinance with another lender; (3) sell the house yourself and give the money to the lender; (4) give possession to the lender; or (5) sit there and do nothing, in which case repossession would just proceed. If I had been the lawyer for these people, this is what I would have advised them. None of these options really involved much legal work per se, and so perhaps it wouldn’t have been in my best interests to tell them that, but it would have been in their best interests.
This harks back to a point Jim makes in his posts: sometimes the best way of resolving a dispute is not to take legal action but to take some other kind of action. As I’ve related in a comment to one of his posts, I once did work experience with a barrister who had worked as a builder for ten years before he went to law school. Naturally enough, while at the Bar he practiced in construction law. He told me an anecdote about how he once acted for a plaintiff who was very dissatisfied with the quality of her house, and was suing the builder. She was most upset about the chimney, as a cold draft whipped down the chimney and there were gaps in it. The case got to the point where the parties were about to end up in court. The barrister went out to have a look at the property, squinted up the chimney, and saw that he could easily fix the fault with perhaps an hour’s work…as a builder, not a lawyer. So he did. And the potentially drawn-out and unpleasant case settled. The nub of the plaintiff’s issue with the builder was that chimney, and once it was fixed, she was prepared to settle with regard to the various other defects.
Legal action is not always what is needed to resolve an issue: but lawyers are trained to give legal responses (which harks back to the post which sparked Jim’s thoughts, Ken Parish’s post on cognitive biases and lawyers). Perhaps lawyers need to be able to recognise when their own legally trained response is not the best option for a client, and when they need to get help from someone else to resolve a dispute. I’d be stuck if I were representing the lady with the drafty chimney! I have no idea how to fix a chimney…all I can do is file a writ. But perhaps if I had that client, it would have been open to me to suggest that she should get a quote for a builder to fix the chimney, and we could compare the costs of going to trial with the costs of getting a builder in once we had the quote. As lawyers, perhaps we need to keep an open mind about non-legal ways of resolving issues, and about getting down to the nub of what the client wants – does she want a fight, or does she want a repaired chimney? Law should not always be war.