Tuesday, January 25, 2011

Listen to your lawyer!

Of course I would write that.  I'm a lawyer.  But doesn't it make sense?

Most folks hire an attorney figuring that the attorney knows something they don't.  Lawyering, after all, is a specialized field of knowledge with intricate rules and protocol, strategy and timing, so this body of knowledge and practice is not in the public realm any more than the ability to actually split an atom is.

But every now and then somebody is certain they know better than their lawyer.  I once had a medical doctor who was quite sure he knew how to do my job better than me.  So I attended our next meeting in scrubs and told him I was going to remove his appendix.  It got my point across.  The doctor got out of my way and wound up doing quite well.

Kids fresh out of law school know more law than most litigants.  Add to that decades of seasoning and it ought to be hard to convince yourself that you could do better than the guy you've paid several thousand dollars to.  But a few folks still don't get it.

This creates an ethical conundrum for me.  I've argued for several hours with some clients about their decisions that conflict with my advice.  I tell them I see the train wreck coming.  I tell them I see their legal demise.  I show them the better alternative, a successful strategy.  But that strategy does not fit the client's emotional drive to seek and obtain retribution.  "The Judge will set her straight," they might say.  "The Judge won't set her straight.  She will win and she will laugh at you for being such a fool.  Will you feel better then?" I might say.

All lawyers face this problem from time to time.  Some clients see us as a tool for their use to aid them in their on-going quest to vanquish the opposition.  We aren't.  We are problem solvers.  We employ our craft in very creative ways sometimes but it is to accomplish a productive task, not a destructive one. (That's true for most of us, anyway.)

So the ethical conundrum is, after several hours of attempting to persuade the recalcitrant client to follow my well-paid advice, do I give up and watch the coming catastrophe?

Sometimes potential clients ask me if I have a winning track record.  "Yes," I tell them immediately, but then I follow with, "but that's a trick question."  If you can almost always accurately predict the outcome of a trial, why would you walk into Court with a losing case?  You try your winning cases.  You settle the losing ones. And in Family Law, you settle every case that you can.  Why?  Because it is far less expensive (usually that's a value to the client) and it is far less toxic and damaging to the family's relationship.

So, do I allow the train wreck?  And could I sell tickets?

I don't allow the train wreck if I can at all possibly help it.  I'll argue with a client right up until the moment that the Judge sounds for the case.

(Practice point: this is why, in Family Law, good offers should never be pulled.  A good deal remains a good deal, regardless of when the other side finally figures that out.)

So, listen to your lawyer.  You pay him enough.  And he really does have your best, long term interest at heart. Besides, train wrecks aren't just the drama of flashy explosions.  There is damage and long term pain  that you have to live with afterward. Ultimately life is more complex than Gomez Adams' model railroad.

Michael Manely

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