Maybe clients would be more satisfied with the outcomes of their cases if they changed the way in which they interviewed and selected the attorneys they retain. When clients consult with attorneys, they frequently ask the attorneys questions of law – they want to know what the law is on a particular issue. Shouldn’t any well-regarded attorney know the law in their field of practice? If so, is it wise to select an attorney based upon their knowledge of the law? I don’t think so.
How would a client know if an attorney is well-regarded within their field of practice? Maybe the client should determine how the attorney is rated. The following sites/publications offer some such ratings:
“Super Lawyers® is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. This recognition is earned only by the top 5% of attorneys in the state. The selection process for Super Lawyers has many steps and includes independent research, peer nominations and peer evaluations. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.”
“Best Lawyers’ “lists of outstanding attorneys are compiled by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for an attorney are positive enough for inclusion in Best Lawyers, that attorney must maintain those votes in subsequent polls to remain on the list for each edition.”
“Martindale-Hubbell’s exclusive Peer Review Lawyer Rating System evaluates attorneys and law firms with a thorough, confidential and independent peer review process. For decades, this well-known rating system has been a popular and reliable source for evaluation of attorneys by buyers of legal services and those making referrals. The Martindale-Hubbell Peer Review Ratings attest to a lawyer’s legal ability and professional ethics, and reflect the confidential opinions of fellow lawyers and members of the judiciary.”
“The Avvo Rating is our effort to evaluate a lawyer’s background, based on the information we know about the lawyer. The rating is calculated using a mathematical model that considers the information shown in a lawyer’s profile, including a lawyer’s years in practice, disciplinary history, professional achievements and industry recognition – all factors that, in our opinion, are relevant to assessing a lawyer’s qualifications.”
A client might be interested in knowing whether the attorney has been selected for any honors and awards which recognize them for their work in their given field of practice. Of course, the client might want to do some research in order to determine the basis for such honors and awards and when the attorney received it/them. Has the attorney been published? If so, what did they publish and in what publications? Has the attorney done any scholarly lectures and/or writings? It might be of interest to note the audience for such lectures and/or writings because that might give an indication of industry recognition.
Clients also want to discuss the particulars of their situation with the attorney during the consultation. For example, when they consult with a family law attorney, they want to tell the attorney how long they have been married, the number of minor children they have together, the amount of income each spouse earns, and information regarding any real estate interest, retirement accounts and the like. If the lawyer is well-regarded in that particular field of law, how do the particulars of a particular client’s situation change that fact? They don’t. Why then does a client want to get into the particulars of their situation with the attorney? The client wants to get the attorney’s advice and/or opinion. Is it wise to select an attorney based upon their advice and or opinion of a client’s particular situation? I don’t think so. Why? It turns out that attorneys are not very good at predicting the outcome of a case.
“According to a 2010 paper published in Psychology, Public Policy, and Law, they’re biased in favor of their own chances; they think they’re going to win, and often they’re wrong. The study surveyed nearly 500 lawyers and had them predict the outcome of an active case and then compared those predictions with what actually happened. From the paper: ‘Lawyers frequently made substantial judgmental errors, showing a proclivity to overoptimism. The most biased estimates were expressed with very high initial confidence: In these instances, lawyers were extremely overconfident.’
But, surely, more experienced lawyers have a better sense of who’s going to win, right? Nope. In fact, ‘the data provided no support for the hypothesis that lawyers with more practical experience are better calibrated than lawyers with less experience.’ So much for the Matlock Effect.
Okay, but certainly it would help if, when making predictions, lawyers were asked to give reasons why they might not win before being asked to rate how confident they were. The researchers thought this “debiasing technique” would encourage lawyers to give more realistic assessments.
It didn’t. They were still overconfident.
So what’s wrong with a little wishful thinking? Well, as the authors point out, imagining a positive outcome significantly increases one’s disappointment when things don’t work out. But it’s more pernicious than that. Here’s what an earlier paper on the topic of confidence has to say:
It can be argued that people’s willingness to engage in military, legal, and other costly battles would be reduced if they had a more realistic assessment of their chances of success. We doubt that the benefits of overconfidence outweigh its costs.”
I propose that when dealing with an area of law that is more subjective, such as family law, the likelihood that the attorney will give an accurate prediction of the ultimate result decreases even further. Why do I say that family law is a subjective field of law? We have “No-Fault Divorce” in every State in this Country. Therefore, unless the case involves issues pertaining to domestic violence or the safety of a child, fault and liability are generally not factors in family law.
In essence, by hiring an attorney based upon their advice or opinion regarding a particular case, clients are hiring attorneys who tell them what they want to hear. If that is most likely an incorrect assessment, is that a good way of selecting an attorney? I don’t think so.
How then should a client select an attorney? Maybe the client should select an attorney based upon their credentials, their philosophy, and their explanation of the different processes available for resolving the particular type of dispute.
I make it a point to always remind my clients, “Like it or not, if there are children of the relationship (regardless of their age), the family still exists after the relationship ends. The manner in which you end a relationship determines whether your family will be functional or dysfunctional from that day forward.”
As my esteemed colleague, Pauline Tesler told me, “the most significant variable affecting whether a divorce will be managed well or whether it will slide into high conflict litigation is who the parties select as their lawyers. Lawyers who understand the nature of human conflict and who aim to help people resolve it, right from the start, handle their cases entirely differently from lawyers who may have reasonably positive views of mediation, but who treat it as just another way of getting to a legal-template deal and who see their job as preparing for maximum measurable gain at trial. Family law clients are going to be distressed, angry, fearful, subject to spasms of vengeful intention and other dysfunctions. Their lives are coming unglued. Therefore, choosing the right attorney is one of the most important decisions a person can make. The lawyer needs to be able to hold up for the client an alternate possibility of working from hope rather than fear. You can lead a lawyer to consensual dispute resolution, but you can’t make him or her into a facilitator of deep resolution without changing the lawyers’ understanding of what it means to be a divorce lawyer, venturing into the sacred space of primary pair bonds unraveling.”
If a client’s philosophy differs from that of the attorney they retained, isn’t it possible that the client will be dissatisfied with the ultimate outcome? Most certainly! After 21 years of practicing law, it is clear to me that the personality and philosophy of the attorneys involved has more impact with regard to the resolution being constructive or destructive than people seem to realize. Maybe the general public should stop hiring attorneys with whom they would not “break bread.” In fact, the world might be a much better place if people considered such things.
Family law matters can be handled through traditional litigation, mediation, or collaborative divorce. If the attorney does not explain the different processes available, how can a client make an informed decision as to which approach might work best for them? They can’t! Each attorney will have their own preferential process, which makes them biased. How then should a client effectively evaluate the different processes and decide which one would be most suitable for them? Of course, the client could do their own research. However, the client could also interview at least one attorney known for each process and then make their own decision.
For all of these reasons, my free initial consultations are limited to discussions pertaining to my credentials, my philosophy regarding family law and the underlying reasons for that philosophy, and general information regarding the different processes available for handling family law matters.
Mark Baer is an attorney, mediator, collaborative law practitioner in Los Angeles, California. He has published articles on family law in a variety of well-respected publications. He can be reached at (626) 389-8929 or firstname.lastname@example.org. Visit www.markbaeresq.com for more details.