How to train your lawyer
My father, a retired tradie and businessman, told me that if you can avoid dealing with lawyers in your life, your life is better off. He then encouraged me to become a lawyer, because hey, if you can’t beat ‘em join ‘em, right?
What my father was trying to convey is that lawyers are seldom engaged when your life or business is going well. Lawyers generally enter a person’s life at less-than-idealtimes.
Legal issues require you to wrestle a whole gamut of emotions while finding the temperance and courage to weather thecomplexities and delays of the legal process. The icing on this layer cake is dealing with us – lawyers.
Why lawyers are a necessary evil
“Why can’t we all just get along?” asked Rodney King in 1991… because, as the below history reveals, we wouldn’t need laws or lawyers!
One ‘broadbrush’ answer to Mr King’s question is that humans aren’t a consistently harmonious species. The need for law in response to human discourse seems to date back to 1700 BC when the Babylonian Prince, Hammurabi introduced a code of laws to restore order and the wellbeing of mankind. Whilst the object of his code was idealistic and premised in abundance and peace – humanity’s higher self, the written rules of this code were laced with barbaric practices (slavery) and tortuous punishments aimed at controlling humanity’s lower self – the way we instinctively act to survive.
To manage the polarity of the human condition, millions of laws have been written over time. The complexity and volume of laws reflect the complexity of human beings, and as early as the Old Testament (12,000 to 165BC) lawyers, then known as ‘scribes’ were brought about to help interpret these laws.
As such, the legal profession is a “necessary evil” defined in the Oxford Dictionary as “undesirable but must be accepted”.
As we can’t be avoided, to my father’s dismay, here are seven tips to, “help me help you” with your legal experience(s).
This article aims to help you smooth the icing to help you train your lawyer, so that your experience is the best it can be.
Here are 7 tips to train your lawyer to help you with your legal experience.
1. What is your why?
“He who has a why to [litigate] can bear almost any how." – Friedrich Nietzsche
To have the stamina to deal with the relatively slow legalprocess (particularly litigation), you really need to know your “why” when engaging a lawyer to commence a legal process. If you don’t think the legal issue will be an issue for you in 6to 12 months (e.g. you heal, you calm down, you negotiate access with your ex civilly etc.), it’s best to avoid lawyers.
2. What do you want and what it means
Once you’ve decided you need a lawyer, tell us what you want. We can then work with you to determine whether what you want can be rectified by the legal process.
If you’re being sued, a lawyer’s initial conversation with you about defending your claim is often about how you feel about the claimant, the merits (or lack thereof) of the claim, and that you want to fight it.
While your feelings set the tone, they don’t necessarily reflect a realistic legal position. In fact, lawyers can far better assist you with the reverse of emotions, the forensics of facts and evidence and how well we can prove what you know, and how well that evidence serves you when applied to the law.
Lawyers cannot undo what is done, and “[we] can’t lie” to improve your case. We take you, and your case as we find them.
The outcome you want must realistically factor in the risk presented by the holes (lack of evidence) in your case and will inevitably redesign that win to look more like a compromise.
3. Understand what is out of your control
In determining what you want out of a legal process, you also need to understand what you can control. For example, if your entire defence rests on the evidence of one key witness – that evidence is in human form and humans move, change their stories, go missing, stop answering their phones etc.
Suddenly, your lawyer’s advice on prospects of a likely wingoes south. When you don’t factor in the risk of what can’t be controlled, it has the tendency to control the entire outcome of your matter.
Another important thing in your control is that you are the expert on the facts of your case (because it’s your business’systems, your injury etc.) and lawyers are humans whointerpret facts from their perspective. As we’re trained a certain way, as you are in your field, lawyers will “lawyer” the facts to best serve your claim, but they may not always interpret them correctly. You must correct us because our duty to independently exercise forensic judgement of your case can only be done properly if we have properly understood the true facts of the case. Do not hesitate to tell us we are wrong, because if you don’t the only guarantee is that our opponents will and happily.
4. What are your prospects?
Even if the supporting evidence is stellar and your witnesses are so keen to give evidence they’ve camped out on the court lawn, no legal practitioner has a crystal ball and can guarantee you success because justice is a subjective process.
Conflict is the disputing of perspectives over the same facts. A decision is the acceptance of one party’s perspective of those facts. You have no control over the perspective of a judge, a juror or how your opponent paints their case. This risk can’t be quantified with any certainty, but it must be appreciated. To save you time and money, you should get a clear picture from your legal team as to your prospects and your options to avoid delay, pie-in-the-sky offers, andcomplicating the matter.
If you don’t know your prospects and risks, your lawyer hasn’t managed your expectations and potentially doesn’t understand your claim. Raise the issue immediately. Understanding your prospects empowers you in your claim.
5. Quantifying your prospects – get the recipe right
Unfortunately, justice in civil disputes costs money, so you must quantify your prospects. If you have a 30% chance of success, (applying a calculation to a future outcome is a in and of itself risk but this is the world of risk management) measured by the above considerations, you need to consider the commercial reality of the legal process. If the claim is worth $100,000 and prospects are 30% it may be wise to negotiate a settlement of $30,000, and adopt the mindset that fast, realistic compromises are a “win” in areas such as civil litigation, as opposed to uncertain judgments.
Fighting on for that judgment in your favour, namely where your opponent loses and is ordered to pay your legal costs,may cost you $100,000 in legal fees. If your opponent has no money or assets, you are unlikely to recover that $100,000. Accordingly, that fight out of principle may not get you a winif the commercial reality of litigation is a factor.
The win you want must be considered in accordance with the game you’re willing to play and the understanding of the prize that’s on offer.
6. Understand your relationship with your lawyer
Ask your lawyer what their advice will and won’t cover.
The Australian Solicitor Conduct Rules oblige solicitors to provide clear and timely advice and follow a client’s lawful, proper, and competent instructions. The rules do not require lawyers to deal with clients’ emotions and feelings.
“It's so cold the lawyers have their hands in their ownpockets!" is a joke conceived out of solicitors’ direct and blunt manner with their clients. It isn’t personal. Lawyers are held to high professional standards and the onus is on them to ensure their legal advice is understood by you, and that it’s correct. As law firms are usually the drafting party to a contractual agreement with their clients, any ambiguity is likely to be held against the lawyer, and not the client.
Accordingly, the fiduciary and contractual duties that solicitors have to their clients and the court are there to protect you, so don’t take our demeanour personally there’s far more at play.
7. Pick a specialist
Find a lawyer who specialises in the area of law in which you need guidance and make sure that lawyer is well regarded in the industry. Ask around to see who is recommended.
Lawyers know when their opponents are not familiar with the practice area and when they’re operating outside their usual expertise, and it can be such an advantage to those lawyers’ clients. If you are getting divorced, an insurance lawyer whoappears in the State courts will be of little assistance to you inthe Federal Family Court.
How to train your lawyer: the summary
Lawyers act on instructions and you’re welcome to train us to represent you as best we can. As Warren Buffett says, “risk comes from not knowing what you are doing” and the hope is this article gives you some knowledge on how to navigate the legal process so we can best serve your needs.
About the author
Catherine King is a Consultant of Hughes and Lewis Legal