Attorneys have target markets; are you a good fit?

Dave, what’s your target market? What type of client chooses you? What type of client do you refer to other attorneys?

The last question is the easiest to answer. For ethical reasons, attorneys may not accept clients facing problems in areas of the law in which they lack competence, cannot become competent with reasonable effort, or do not wish to associate with a competent attorney. Beyond that, it is personal preference and interest.

I am personally interested in legal issues, conflict, and disputes involving businesses, neighborhoods, and churches. My preventative law practice focuses on transactions, contracts, business documents, and business policies, but if a conflict has escalated to the level of a dispute, I move into settlements, negotiations, use of the collaborative process, and mediation. I do not care for family law (even though I help many individuals in this area through the in-take process at Legal Aid), because I respect the sanctity of marriage (“…let no man put asunder… etc.”) even though there are plenty of innocent parties out there. I also don’t care for criminal law or personal injury cases.

So what is my target market? It would have to be the business people who make decisions and wish to be in control of their destinies. It includes entrepreneurs who developed their businesses through their own sweat and do not have funds set aside for litigation. It’s those people who realize that telling the attorney to “sue the bastards” is a no-win situation for the client. It includes the construction industry, the high tech industry, and many shops and operations in between. My clients want to be able to talk to a business person about business problems. They are willing to consider out-of-the-box solutions. They want to do things on their own but sometimes need a sounding board or a little guidance. They are self confident, know they don’t know everything, and know they don’t have to know everything.

Sadly, from the perspective of a seasoned professional, the vast majority is relatively young – more mature individuals, who should have more wisdom, seem to be tainted from having grown up in a litigious society that rewards winning at all costs. Younger folks seem to understand the societal shift toward cooperation and collaboration. Most have grown up with the internet and understand the value of information and time. Yes, there are some of us who remember the tag line, “And that’s the way it is”, but we realize it doesn’t have to be that way.

Am I like most attorneys? Certainly not. According to one survey, I am least like lawyers and most like Operations Managers, Manufacturing Managers, Construction Managers and Information Center Managers. This means I have more in common with problem solving executives in action-driven organizations than I do with individuals earning a living from the litigation process. (Survey results available upon request.)

When hiring legal expertise, be sure you have a good fit. As with other professions, there are competencies and personalities; choose your counselor carefully.

It may be legal, but is it right?

A Conversation with a Litigator

An interesting conversation occurred between a Collaborative Practitioner and a Litigator after the Collaborative Law Section meeting at the local Bar Association. The Litigator made a number of accusations and assertions concerning the use of the Collaborative Process:

1) “The practice of Collaborative Law attracts lawyers who can’t find their way around the courthouse and who don’t know how to litigate.”

2) “If you look at the attorneys beginning to practice Collaborative Law, you’ll find they are generally young or have a business background and have not been Litigators.”

3) “As a Litigator, I can win more cases and obtain bigger settlements than the Collaborative Practitioners can achieve.”

4) “The Collaborative Practitioners are running up bills and using all the assets so there is nothing left when they finally turn the matter over to the Litigator.”

Sadly, this seasoned attorney stated that he attended the meeting just to see if he could network with Collaborative Law Practitioners for referrals of those cases where the parties opt out of the Collaborative Process. He was not interested in understanding the process or learning enough to be able to offer the Collaborative Process as an alternative to Litigation to his clients.

A couple of us gently explained the future of the practice of law (see “The New Lawyer: How Settlement Is Transforming the Practice of Law” by Julie Macfarlane, for a study of the progression of the profession) and the normal development of a society from lawlessness through a period of “law” to collaboration.

Lawyers have been hired to be the warriors for people in conflict so they no longer have to physically fight or kill each other over a dispute. Although they are sometimes considered to be counselors, many lawyers have forgotten this role or view it only as part of the preparation for “war” in the courtroom. The New Lawyer is a “conflict management advocate” for his client and avoids the infliction of emotional and financial distress whenever possible.

In response to the assertions, we stated:

1) Collaborative Lawyers are no more or less competent than those making a living in the courthouse. We have merely chosen to put the interests of the clients ahead of our personal interests. With greater than 90% all cases being settled before trial, does it make sense to conduct trial preparation rather than expending that energy in resolving the dispute in a timely manner? Litigators enjoy the fight and the spotlight – nothing wrong with that. Collaborative Practitioners enjoy problem resolution, maintaining on-going relationships between parties, and allowing the parties to work on a solution that may not be available through the courts.

2) Many attorneys beginning to practice Collaborative Law are generally young or have a business background and have not been Litigators. However, many entering the practice are middle aged or older, and may have been practicing law all their lives. Certainly, those under 35 have grown up with the web, instant access to information, sharing of ideas, working in team environments, and quickly moving beyond conflicts. Why would it surprise anyone that young law school graduates are disillusioned with the current judicial system’s method of dispute resolution? Those attorneys who have been in management positions outside of a law firm no doubt are better positioned to assist their business clients in addressing the issues and developing solutions. Is it surprising that they find the structure of the Collaborative Process appealing? Finally, of the members of the Section at the meeting, the vast majority have been Litigators – many for more than two or three decades. Perhaps they have now found something they could not provide to their clients in all those years of doing battle.

3) As a Litigator, you are concerned about winning and winning big. In the Collaborative Process, the focus shifts from the attorneys in the spotlight to the clients working on resolving their differences by expressing their interests rather than their positions. Why wouldn’t the client want to be involved in the resolution process and keep the dispute out of the public eye? Should the use of the legal system be about the lawyer or about the client?

4) The Collaborative Practitioners use assets to resolve disputes. If the parties had been able to resolve the issues without assistance, they would have done so and avoided all expenses. However, most Collaborative cases are resolved faster and at less expense (both financially and emotionally) than cases taken through the courts. If a party opts out of the process, additional assets will need to be used to go through the litigation process, but that is a known risk; just as an appeal from a trial is a risk in the litigation process. Doesn’t it make more sense to try to resolve the dispute through an agreed upon process with a controlled outcome where the parties may maintain complete privacy? The Collaborative Process, done correctly, does take time and hard work and professional fees will add up; but consider the alternative.

It may be legal, but is it right?

Business Relationships Maintained Through Collaborative Law

If you are in business, you know the importance of relationships. You spend time and money establishing, developing, and cultivating relationships. Your business depends upon the transactions and contracts you execute with the parties with whom you have relationships.

Unfortunately, sometimes conflicts arise. Given the global economy and the mobility of the workforce, an unresolved conflict or a broken relationship not only impacts current business, but it may also come back to haunt you years later. Often you deal with conflicts before they become disputes. However, once at the level of a dispute, you may find yourself headed to the courthouse for resolution.

But wait! It does not have to be that way. There are other means of dispute resolution; one of which is the collaborative process.

Remember when you negotiated the contract? Similar concepts apply to resolving the dispute. The collaborative process allows you and the other party, perhaps a supplier, customer, or reseller, to work together the way you did in forming the relationship and the resulting contracts. You set your own schedule for discussions, focus on the interests of the parties, explore all possible options, keep your negotiations confidential, and you don’t involve the courts.

Best of all, relationships may be maintained. The relationship with the other party may remain intact to allow for other contracts. And, more importantly, from a business perspective, potential relationships with other vendors and customers are not negatively impacted by adverse publicity or the belief or observation that your only method of dispute resolution is through the courthouse.

The collaborative process works well in resolving disputes over purchase and sale agreements, operating agreements, subcontracting agreements, promissory notes, employment agreements, non-compete agreements, vendor / customer contracts, lease agreements, nondisclosure agreements, and many other business contracts and situations.

Before following the path of litigation, consider some of the benefits of the collaborative process:

Preservation of existing relationships.

Avoidance of damage to future relationships.

Control of schedules, experts, communications and costs.

Avoidance of courts.

Maintenance of confidentiality.

Consult with a Collaborative Law attorney to see if your situation may be resolved through the collaborative process.

It may be legal, but is it right?