Dispute Settlement Counsel

Things change fast and laws sometimes lag the current reality.

I’ve been looking at the lawyer of tomorrow, which in society’s real time timetable means today’ lawyer.   Things change so quickly in today’s world that if you’re equipped to handle yesterday’s problems today, you may be “so five minutes ago” tomorrow.

The pace of today’s IT world is creating havoc for lawyers and lawmakers armed with tools and rules of engagement that just can’t keep up with today’s realities.  By the time a law is written, introduced, debated, passed and takes effect, it’s already outdated.  By the time the legal system’s civil procedure plays itself out, the problem presented to the courts to resolve is probably irrelevant to the parties that dropped it on the lawyers’ doorstep a few years ago.  Somewhere around the time the lawyers would be meandering through a year-long discovery process, drafting strategic motions and preparing for a trial that is highly unlikely happen (over 95% of cases filed with courts settle and never get to trial), today’s clients will have already either put a temporary band-aid on the problem or just walked away from it altogether.

Suggest to a young entrepreneur in his twenties the notion that the legal adversarial system will decide his dispute in about two to four years (if there’s no appeal), and the legal fees will run some five digit number and brace yourself for the look that roughly translates into something like this:  Three years?  Exactly what planet did you just arrive here from?  Or, in the language of the environmental, energy, green and organic communities, you will have just earned this undesirable label:  That is not a sustainable model.

Some key skills and principles used in civil litigation have an essential place in today’s world.  Understanding legal principles, familiarity with current case law, the application of statutes and regulations and strong legal analysis are still vital.  Advocacy on behalf of one’s client is still critical; the client’s rights and assets must be protected.  And designing strategic approaches is important.

But the deck that these tools are cards in has been reshuffled, and some traditional cards are being removed and replaced by others.  It’s a different hand that’s being dealt to the new lawyer, calling on his or her mastering of negotiation skills, active listening, understanding of concepts like emotional intelligence, reframing, appreciative inquiry, interest-based and non adversarial dispute resolution.

As lawyers, we still need to be zealous advocates for our clients, now and always.  But the methods and approaches of that advocacy, as well as how we apply our zeal, have changed.  In addition to committed advocacy, the centerpiece of our role as new lawyers is actually a throwback to the old notion of the wise and trusted legal counselor.  The third piece of the new troika that rounds out today’s  lawyer that clients will be seeking out is the role of a creative problem solver and skilled negotiator.

Lots of lawyers will assure clients that they do all three things.  But there’s a vital tripwire here.  The traditional lawyer may have been able to put on each of the three hats, but they were three different hats, so he didn’t and couldn’t wear them all at the same time.  The best of today’s three-pronged lawyers have worked to develop these three skill sets to the point they have been internalized, so that they are integrated and interconnected.  Today’s lawyer can give wise counsel, act as an ardent advocate and adeptly problem solve all at the same time.  It’s a subtle difference, but a critical difference, especially as it impacts the client and the depth of his legal representation.

Zealous advocate, trusted wise legal counsel and talented problem solver.  This is the new lawyer of today, and he will still be a complete lawyer tomorrow, not only in the new sustainable models that are evolving, but in any situation.