TBA Law Blog

Posted by: Christy Gibson on Mar 14, 2012

In 2000 I recognized that the way we practiced law was changing and the way I, in particular, practiced needed to change.  For years I had been a trial lawyer, particularly in the area of juvenile and family law, with an emphasis on elder and divorce law.  Some of the actions I took as a zealous advocate weren’t sitting well with me and I saw clients who were NOT enamored of the idea of litigation.  What they wanted was a resolution to their problem.  Often for the elderly, the problem involved getting their children, grandchildren, nieces, nephews to “do the right thing.”  The right thing didn’t necessarily translate into a rights or legal based issue.  For divorcing parties, it often meant balancing the abilities and schedules of parents with the needs of their children, or finding a way for the members of the family unit to live separately without pushing one or both of them into poverty.  Rights weren’t paramount; the ability to problem solve creatively was what helped the most, as long as it was informed by legal rights and responsibilities.

Coming to the fore just as my thoughts about my practice were coming to a head was an increased interest in mediation.  It was certainly true that a very dear friend of mine, and law school compatriot, Jocelyn Wurzburg, had been practicing mediation for several years by the time my awareness was raised about mediation, and she served as an inspiration, as well as a mentor and trainer for me.  So, I took the plunge and took the training and was listed as a Rule 31 mediator.  I later took the Domestic Violence special training from Carole Berz of Chattanooga.

In 2007, I was lucky enough to be working in Memphis with some lawyers and legal educators who formed a group calling itself the “Lawyers as Peacemakers, Lawyers as ProblemSolvers” and produced a conference of the same name.  Attending that conference opened my eyes to a whole new world of possibilities for the practice of law, and the toolbox of ideas and methodologies expanded beyond anything I ever thought was possible.

Included in my new library of legal books was Julie McFarlane’s book “The New Lawyer: How Settlement Is Transforming the Practice of Law” and J. Kim Wright’s book “Lawyers as Peacemakers: Practicing Holistic, Problem Solving Law”.  I have had the great good fortune to become a friend of Ms. Wright and the opportunity to work with her on a number of projects.  In March of 2012, I look forward to meeting Ms. McFarlane at the Tennessee Association of Professional Mediators training.

Ms. McFarlane’s book begins with a quote from a waiter in Vancouver whose response to Ms. McFarlane’s statement that she was in Vancouver to give a speech was “You’re giving a speech about lawyers and conflict resolution?  Huh?  I don’t usually connect lawyers with conflict resolution”.  Unfortunately for our profession, the sad truth is that the general public associates us with conflict, not with its resolution.  According to McFarlane, the costs of protracted litigation and the delays in getting into court increase a huge disconnect between lawyers and expeditious resolution and, most importantly, the clients.  She goes on to point out that, despite this perception, the reality is that very few cases ever “go to trial.”  The problem is in the lengthy and drawn out process of actually reaching a resolution through the use of the court system, the automatic default to rights based litigation as the premiere methodology for resolving a dispute and the attendant reluctance of lawyers to use alternative dispute resolution methodologies.  Additionally, she points out the ongoing emphasis in legal training on developing appellate argument skills instead of negotiating skills which leaves new lawyers without the requisite skill set most often needed in the real world of the practice of law.

McFarlane’s central thesis resolves around three main or common core beliefs and values shared by most lawyers, and that those core beliefs and/or values should be rethought in light of changes in technology, actual practice and ongoing dissatisfaction by the public with legal services as currently delivered.   The core beliefs are:

  1. The default to rights based dispute resolution through litigation;
  2. The idea that justice is delivered because the process used to adjudicate those rights is used uniformly; and
  3. That lawyers as the “experts” control both the process and the expectations of the clients.

Through her examination of these three common core beliefs, historically and in their current application, McFarlane argues that we, as lawyers, should find ways to maintain them effectively, while at the same time expanding our skill set to include other ways to assist our clients and to determine when, where and how each of these skill sets are best to use at any given time or circumstance.  McFarlane distills this idea down to posit that:

“The key to effective lawyering lies in discriminating between different types of conflict and what are appropriate means of addressing and resolving them in ways that meet the needs of disputant’s and society’s interest in fairness.”

Kim Wright makes a similar type of argument in her best-selling book, “Lawyers as Peacemakers.”   Rights based litigation has a significant and ongoing role to play in enforcing laws with broad application- when someone is polluting a river upstream from me and it’s affecting my drinking water, immediate action needs to be taken-is often an example Ms. Wright cites to demonstrate the importance of litigation.  Equally important to our system of justice is the high regard we should have for the rule of law and its application across the board to everyone; creating or maintaining precedent to achieve continuity of rights and responsibilities also weighs in.  However, a lawyer should develop an ability to deal with individual problems in a more creative, holistic manner that can expeditiously resolve or avoid a legal problem and bring about closure as quickly as possible

These ideas also inform the work of Richard Susskin’s recent book, “The End of Lawyers: Rethinking the Nature of Legal Services.”  Mr. Susskind’s central idea is not that lawyers or practicing law will end as a profession, but that the profound ways our world is changing necessitates a change in how we deliver our services to our clients and what our clients will need from us in the future.

Much of the thinking that goes into the idea of the changing roles of lawyers, along with the changes in the way we practice, has been researched by Professor Susan Daicoff of Florida Coastal School of Law, whose article “Lawyer Know Thyself” spawned a discussion among legal scholars.  This discussion led Professor Daicoff to further refine her thoughts about how different methodologies of practicing were developing- she calls these methodologies ‘vectors in the law.”  A recent conference in Colorado Springs was held by leading promoters of the use of the vectors, and the phrase ‘integrative law movement’ was coined.  A small group of lawyers has coalesced around the vectors, and much of their writing on the subject is found on the web site www.cuttingedgelaw.com.  Tennessee Supreme Court Justice Janice Holder once jokingly told me that courts and lawyers in Tennessee suffer from the “50 Year Rule”- basically we have done things this way for 50 years, why change?  Changes in technology, in information availability, an increasingly better read and more sophisticated client base and research into human beings’ psychologies, decision-making processes and a growing awareness about alternatives and how they can inform our practice will eventually push lawyers and the courts to adopt, if not embrace, the various vectors described by Professor Daicoff.  Though this awareness is still in its infancy, I recently mentioned the concept of collaborative law practice to a group of attorneys who clearly had no clue what I was talking about.   At some point, the legal community in Tennessee will need to grapple with which changes we will adopt.  It would behoove the ADR community to be the leading expert on those vectors of the integrative law movement, their application, their benefits as well as the detriments to adopting a particular methodology, and be prepared to advise attorneys and courts accordingly.  The legal community will need to have some advanced thinking done about how we, as lawyers, and our judicial system will adapt to changing roles, changing technologies and changing ways we enforce rights and resolve disputes.  My sincere hope is that groups such as the Tennessee Association of Professional Mediators and ADR sections of the Bar Associations, along with law schools and other conflict resolution teaching entities, will help Tennessee clarify, modify and adapt, through the exploration of the “vectors in the law,” what types of integrative legal theories and skill sets we will adopt or use or modify for use in our jurisdiction.  We should help the system by becoming informed about ongoing changes, such as the widespread adoption of collaborative law practice in Texas, and what we want to do in Tennessee.  We should be aware of the use of therapeutic jurisprudence, neuroscience theories and restorative justice concepts and how they can impact criminal law.

Now is the time for mediators, arbitrators, holistic lawyers, and collaborative practitioners to continue the conversation we began in 2007.   We can help determine which of the vectors we want to adopt and how we want those to look by becoming informed and creating workgroups to explore the experiences of other jurisdictions and attorneys.  We can shape different and more dynamic processes for our clients while still retaining principles and concepts important to the practice of law.  My charge to you in the next months is to become aware of what other jurisdictions are doing, attend workshops and trainings on the various subjects and then join the “Lawyers as Peacemakers, Lawyers as  Problemsolvers” group for a conference in Memphis in mid-October as we continue our journey to making the practice of law the best it can be.

Linda Warren Seely

Memphis Area Legal Services