Why Clients Should Take Some Responsibility for Their Dissatisfaction with the Ultimate Outcomes of their Cases

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:

1. Super Lawyers®

“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.”

2. Best Lawyers®

“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.”

3. Martindale-Hubbell

“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.”

4. AVVO®

“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 mark@markbaeresq.com.  Visit www.markbaeresq.com for more details.

8 comments

  1. Thanks for the direction in this critical issue of choice of representation. Clients would also do best to have someone they trust to help in the research and screening process and emotions run high when sitting across from an attorney to tell your story.

  2. Carroll Straus says:

    “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 ”

    The late Ira Lurvey said so, I am srre Bill Eddy would say so…Mark and I and Shawn Weber say so… Many potential , however,, don’t say it OR think it. I forget who posted the article on collaborative practice n probate, but he hit the nail on the head. The MAJOR obstacle in those cases and divorce cases is the sense of entitlement.

    Can a lawyer disabuse the would-be litigant of that malignant mind set? So far I have failed, but mayhap this is an area where I need to change something in ME. That said, as long as the larger percentage lawyers (in the media and in their offices) see that sense of entitlement as their cash cow… the public will find themselves litigating themselves into ruin.

    But we can all try to “get the word out” as mark is doing. There WILL BE a tipping point…

  3. Leslie Hart says:

    I think this article is a very informative, insightful and comprehensive description of the climate in which prospective clients are choosing their counsel in Family Law cases. Unfortunately, many practioners can’t or don’t educate clients about alternative process choices; but more importantly we, as the professionals, need to inform and manage our client’s expectations more realistically from the start, not just tell potential clients what they want to hear in order to get their business.

  4. Ashley says:

    This is a great article. Thanks for your insight.

  5. Staff of Divorce Magazine Martha Chan says:

    Good article. Very informative.

  6. I agree with the philosophy of mediation and collaborative practice, and apply it to my practice. What is immensely frustrating to me, however, is that the as much as these principles and philosophies are lauded within the profession, they are not supported in practice by the judges who seem to be preaching the loudest. More than once, clients have complained to me, and I do not entirely disagree, that rather than being rewarded for attempting to mediate issues, they are leaned on the hardest by the judges to give even more. Perhaps cynically, I believe this happens because the judges know that the party who has shown a willingness to be reasonable through mediation is the party most likely to cave at the pre-trial and get the whole thing resolved without need of the hearing. As much as I try to manage my clients’ expectations, I am increasingly frustrated with how to encouage them to mediate when I believe they will only be punished for it in the end.

  7. MarkBaer says:

    Nanine, I noticed that you practice law in Louisiana. I practice in California and am therefore not able to speak to the issues you have raised with regard to the behavior of judges in your jurisdiction.

    Assuming that you have accurately described the situation in Louisiana, it is very troublesome, to say the least.

    First, the judges believe that they know more about what is in the best interest of the family than the family itself. They know this without knowing the members of the family personally and from the small fraction of insight they receive from pleadings and testimony submitted.

    “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This quote is from the ABA’s Model Rules of Professional Conduct. (http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope.html).

    “The zealous advocate often speaks and acts in ways that to many are morally questionable, less than candid, and do not promote respect for the law in the eyes of the public.” http://www.cardozo.yu.edu/life/winter2001/bennett/

    I have long questioned the suitability of zealous advocacy within the context of family dynamics, whether it be family law, probate or the like. If one considers the definition of zealous advocacy, it is inconsistent with equity or fairness.

    Are family law attorneys who take their role as zealous advocates doing what they believe they must do in order to be in compliance with their ethical responsibilities? Maybe yes and maybe no. I, for one, do not believe that attorneys should be confused into believing that they need to practice family law the same way they would practice law as a criminal defense attorney.

    The judge is therefore making decisions that will impact the family from that day forward based upon very limited information conveyed to them from zealous advocates and all that involves.

    Second, the judges punish reasonable behavior. I have experienced the legal system up close and personal as a party to a lawsuit involving my mother’s estate. That case went to trial and forever changed my outlook with regard to the legal system. As attorneys, we hopefully believe our clients, but we also have limited and not necessarily accurate information. Our assessment of our clients’ cases are based upon that “information.” However, when we go to trial on our own personal cases and watch in horror as the judges make factual findings that are inconsistent with reality and then apply the law to such facts, I cannot begin to describe how that impacts us. While I am a strong advocate for mediation and collaborative divorce, I still litigate as well. I advise my clients that as good a case they think they have, they can never know what a judge will do. I was almost destroyed by the legal process and have little doubt that if I ever again find myself personally involved in the litigation system, it will be the end of me. Litigation and courts have nothing to do with truth, justice, or equity. I actually wrote an article on my experience and the impact it had on me. That article can be found at the following link: http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2012/April/Why-I-Am-Determined-to-Help-People-Embrace-a-Mor.aspx.

    I also wrote an article on “Judicial Bias – A Variable That Is Often Overlooked in Family Law Litigation.” That article can be found at the following link: http://www.markbaeresq.com/documents/Articles/Judicial-Bias-in-Family-Court.pdf

    Third, I do want to point out that mediation and reasonableness are not necessarily one and the same. In litigation, we resolve matters based upon legal rights and obligations. Of course, the zealous advocacy aspect and judicial bias result in misplaced legal rights and obligations. In mediation and collaborative law, we resolve matters based upon interests, needs, values, goals, and fears. If the clients are solving their problems in such a manner, does that mean they are being reasonable? Maybe yes, maybe no. The answer to that question depends on your point of view. If you believe that the legal system is the “be all, end all”, then is it reasonable to resolve a dispute outside of the legal system?

    I would like to end my lengthy comment with the following quote: “The key to successfully co-creating is a strong focus on collaboration…. Cooperating is a much lower level activity than collaborating. Knowing the difference can make all the difference in the results you get with your business partners. You cooperate because you have to; you collaborate because you want to. Cooperation is based on a scarcity mindset; it’s about protecting and defending your piece of the pie. Collaboration is based on an abundance mindset, working together to create a bigger pie for all…. When you and I cooperate, we work separately and make accommodations for each other. When we collaborate, we are not simply making room for each other’s creations; we are co-creating the future together. Collaboration is a function of genuine communication…. Communication fuels collaboration, which fuels more communication, which fuels more collaboration…. There has been a lot of cooperation between competing players in the industry, but not true collaboration. It’s still protect and defend, fiefdoms and egos, legacy thinking – all the things that keep abundance from happening.” http://www.burrus.com/2012/10/are-you-cooperating-or-collaborating-the-answer-will-increasingly-influence-your-success/

  8. Debra Block says:

    As a divorce coach I agree completely that the choice of legal representation sets the tone of a divorce and impacts directly the feasibility of the couples relationship post divorce. I work with clients to understand while there isn’t much they can control while dealing with divorce, they can control how they chose to approach the process. With a shark that thrives in the dark, or a flame thrower that is anything but a problem solver, or an attorney that holds high credibility and, as you suggested, has a philosophy of resolution.
    From the client perpective, I will share that finding a divorce lawyer when your life has become completely unraveled is an overwhelming, intimidating process. Prospective clients often don’t know where to turn and what to look for in a good attorney. I dedicate a significant piece of my practice to establishing relationships with attorneys who communicate with their clients, are problem solvers, look for clients to remain credible and responsive rather than reactive. My calmest client’s are their client’s as well.
    It is amazing to see the difference in a client’s (and their children’s) well-being when they move from the Shark to Attorney Effective Problem Solver.

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