What kind of car do you own? Is it a Kia? Is it a Hyundai? Maybe a Mercedes? What about a Tesla? Why does any of this matter? They're all just cars, right? Wrong. You may think you're just buying a car, but you're not. You're buying a statement of who you are. You are buying an experience. It just happens to look like a car. The people who think Kias are cool cars are not the people who would always buy a Mercedes. The folks who drive Teslas are not the ones who buy Hyundais. Mercedes screams luxury and wealth. Tesla says you're cutting edge as well as environmentally friendly. Kias are cute but utilitarian cars. Hyundais are for folks who want a little luxury but not the luxury price tag. Sales people know this. They sell the image and the experience that goes with it. Check out the showrooms for the different car brands if you don't believe me.
Lawyers think they sell legal knowledge. They think they sell legal expertise. They think they sell their courtroom experience. They're wrong. They sell the process itself.
Most clients assume competence. You heard me, they assume competence. That means all the things lawyers think clients are looking for, they assume we already have. They come into our offices assuming that we know how to solve their problem. They trust that we know the best way to do that. Here’s what they don’t know.
There are 5 possible processes that a client can use to resolve their problems in the Trenches: kitchen table negotiations, mediation, collaborative practice, lawyer-to-lawyer negotiation and litigation. As lawyers, we have an ethical duty to make sure our clients exercise informed consent over which process works for them. That means we have to describe in detail all 5 processes. The difficulty is that every lawyer has a preference for process. Just like the Tesla dealer isn’t going to tell the customer that a Prius is also environmentally friendly at a much lower price tag, or a Mercedes dealer won’t talk about how luxurious a Hyundai Genesis is, so a lawyer who likes to litigate is going to skew toward emphasizing litigation over mediation. Those same lawyers will downplay the value of collaborative practice. Likewise, lawyers who love collaborative practice will emphasize the benefits of that process over litigation or mediation. Clients trust us, so they follow our lead about the choice of process and rarely ask questions. That might be a mistake, because process determines outcome. Each of these processes has a different result in terms of experience, cost, future relationship, and even outcome. Just like there is a type of car for every type of person, there is a type of process that is appropriate for every family.
What does all of this mean for clients? It means that, just as with everything else, clients need to be well-informed consumers. Lawyers need to be in less of a rush to suggest process, and educate clients of their process options. Clients need to insist on being fully informed on the choice of process, which includes the pros and the cons in an even-handed way. Often, lawyers are afraid to spend an entire appointment doing this important education piece because they don’t think a client would find value in a meeting in which they do not come away with “legal advice” about their problem. To be sure, there are clients who simply want a solution to their problem and aren’t interested in process choice. Most of those folks don’t read this blog. Most clients are completely unaware that their choice of process determines their outcome; once they do, once they know they have a choice as to how they move forward, these clients see that a discussion of process choice is the most important discussion they will have in their family law case. For them, a discussion of process choice is legal advice. Most clients are thrilled to know they are not forced to fit their experience into one type of process because they want at least some control over their future.
What kinds of questions should the client ask for each process? Here are a few:
1. How much control would I have over the outcome? Who makes the ultimate decisions?
2. How much would I be required to participate?
3. What is the lawyer’s role? Are there differences in confidentiality and information sharing in the processes?
4. What if I have trouble communicating to the other party?
5. How do we gather necessary information? How can we be sure we have it all?
6. What happens if the other party isn’t being honest?
7. Why would I choose one process over another?
8. What might happen after the end of our case? What is the likelihood of future issues? What is the likelihood of resolving future issues?
9. How does this process help me reach my goals for the future?
10. What is the lawyer’s preferred method of dispute resolution? Do they practice all of the processes, or just some? Why is that - what is their philosophy? How comfortable are they in each method?
11. How quickly can each process resolve our issues?
12. What is the range of costs for each process? What drives the cost for each process?
13. How are decisions made in each process?
Know what you’re buying and be an informed consumer. Here in the Trenches.
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