Tuesday, May 26, 2015

That Well Won't Prime

One of my closest friends here in the Trenches and I are in a collaborative case together.  The case is wrapping up, and my friend is doing the first draft of the agreement.  He sent it to me late last week.  I made some edits and sent it back to him.  In return, I received an email from him asking me why I made a specific change.  I explained it and thought to myself, "Duh, do you think I'm silly enough to let my client get the short end of the stick on that piece of property we agreed to split it equally?"  He wrote back, asking why it was that I would want him to change the agreement so that HIS client got the short end of the stick instead of half (I'm sure he thought "Duh" as well).  Wait a minute - we each thought the other's changes hurt our client?  What's going on here?  I then did the thing that I should have done in the first place:  I said I thought we were having two entirely differenct conversations, and could he explain.  He did.  Then I did.  Guess what?  We WERE having two entireley different conversations.  Each of us was operating from a different set of facts and a different definition of the terms.  As my friend then said to me, "Just like any married couple."  So true.  Once we had the same facts and the same terms, we agreed quickly because both of us were somewhat correct, and together we were totally correct.

Like most of the people we see here in the Trenches, my friend and I each assumed that we were operating from the same set of facts and the same definition of terms when we had our conversation.  What happens with our clients, however, is they get into a heated discussion about whose position is right.  They are so invested in not being wrong, that they never stop to consider that they may be having two entirely different conversations.  Why didn't my friend and I do that?  Why didn't we devolve into a heated debate at cross purposes to each other? In a word, trust.  We trust each other.  That's huge.  As Stephen Covey used to say, trust takes a lifetime to build, and a second to destroy.  All those deposits you make in someone's trust bank can be gone in a second with one act of betrayal.  My friend and I have never made a withdrawal from our trust bank; most of our clients' trust banks are overdrawn.  A lifetime of little betrayals erodes even the biggest deposits of trust.  When the bank account is empty, those folks are in our offices as high conflict cases.  They're with us because they are no longer able or care enough to make sure they are operating from the same facts and terms.  They are too hurt to back up, regroup and try again. Compromise feels like loss. Pain makes their rational selves take a holiday.  Now, to be sure, some of our client really shouldn't be married.  I wonder, though, how many would still be married if they took the time and put in the effort to ensure they understood what their spouse was saying to them.  I know, that takes time most people don't have, with work and children and running around.  It probably takes a lot of work with a skilled therapist or mediator to start to put the money inthe trust bank rather than continuing to overdraw it. Still, I wonder.....Here in the Trenches.

Monday, May 25, 2015

A New Pair of Running Shoes

I got a new pair of running shoes on Saturday.  In the infinite wisdom of running shoe companies, they decided to change the shoes I love.  The new model?  It doesn't fit.  Ergo, I headed out to the running shoe store.  Back when I first started running in earnest, I had no clue how to choose a running shoe.  I walked into a running store, looked at the wall of 50 shoes and picked a pair.  Sometimes I had help that found me the right pair (until the company changed the design).  Sometimes, I ended up with more than a few pairs that didn't fit right.  In fact, one of those pairs created such a problem that I had trouble wearing heels for years and couldn't run for six months.  Sorry, I digressed.  This time, I walked into the running store, explained what I needed, what the shoe had to be like - wide toe box, zero drop, fairly light weight - and tried on what they had.  I ignored all the other pretty shoes because I knew they were wrong for me.  The lovely man who was helping me tweaked the size, the width and the model until I found the right pair.  Easy.  I left happy and had a great run that afternoon.

Running shoes are like lawyers.  There are a lot of different lawyers.  They are all alike, in that they are all lawyers.  Like running shoes, however, one lawyer is not like another.  One size does not fit all.  That's why there are so many different types of running shoes - everyone needs something different.  That's why there are so many different types of lawyers - everyone needs someone different.  The problem in the Trenches is that most people are only here once.  They don't have the benefit of experience or trial and error to know the difference between one that's a a good fit and one that could cause more harm than good.  Most people don't figure out which one they have until it's too late.  WAIT.  I take that back.  Most people do know, they just don't pay attention.  It's kind of like the running shoe that really hurt my foot.  It didn't feel right from the beginning.  What did I do?  I minimized my feelings.  I told myself I was just being the princess and the pea.  As my foot hurt more, I told myself something else was causing the problem - old age perhaps? I had clues all along; I simply ignored them.

Isn't that what clients do?  Aren't they human too?  They're usually pretty good at it.  I'm sure most of them knew something was wrong with their marriage or their relationship a long time before they ended up in my office.  They told themselves it was just a phase, that thing would get better.  Only, they didn't.  Things just kept getting worse until one day, well, they are in my office.  It's human nature.  You would think that these same people, having ignored that feeling in their gut that something wasn't right, wouldn't ignore it again.  You would think that the minute they had that feeling that this wasn't the right lawyer for them, they would address the issue immediately.  You would think they would talk to the lawyer, and if it still didn't feel right, change lawyers.  You would think that and you would be wrong.  You see, people who have ignored their gut feelings for so long aren't in touch with their gut anymore.  They also don't know they don't have to stay with the first attorney they choose.  Cases take a long time to work their way through the system or through settlement negotiations.  The wrong lawyer can make it feel like it takes longer than it does, and because they are not speaking the same language, can reach a resolution that is not what the client desires.  The right lawyer can shorten the process and help the client reach an acceptable resolution.  Here in the Trenches.