Ten Secrets of Great Lawyering

Practicing law requires many skills. Surprisingly, only one of them is knowledge of the law. This article summarizes my reflections on practicing law after many years of experience, and the many disparate elements that come together in addressing clients’ problems. You may be surprised at some of my comments.

1. Your client is your partner. 

Virtually all my clients have contributed much towards solving their own problems. My clients are in a better position to know all the facts and circumstances of their situation, and have always given much thought to it. Opening up to your client’s expertise concerning his or her own problem can be a very effective way for you to begin providing helpful input.

I respect my clients’ intelligence and good sense, no matter their walk of life. I believe that all people are smart and have a great deal of inherent wisdom. My clients seek my advice because of my special skills in problem-solving and my knowledge of the law. By partnering with my client, we can both do a better job, because there are two of us working on the problem.

2. Find the way of least conflict.

Most of my time at work is spent resolving conflict. Conflict is at the heart of the legal profession, and lawyers are trained conflict resolvers. Some lawyers use traditional techniques of resolving conflict through positioning and litigation. These methods definitely have their place in some situations. Some attorneys also use techniques termed “alternative dispute resolution” (ADR). These lawyers often resolve conflict through collaborative law or mediation, or techniques using both of these methods.

Although I am a lawyer and chose to be one, I actually dislike conflict. I try to avoid it whenever possible. As it turns out, this can actually be a very good way to resolve conflict. First of all, it is often possible to find a solution that can satisfy both sides. When you can satisfy both sides, then the solution to the problem is not a zero-sum game where one party wins and the other party loses. A good way to find a mutually agreeable solution is by focusing on the parties’ interests rather than their positional stances. See if any bridges can be built between those interests. Try to have the opponents make deals and trade with these interests. Lawyers do well when they find the most effortless and peaceful path to solutions of problems and disputes.

3. Ask open-ended questions. 

Skillful interviewing is the key to finding out the facts that are crucial to solving your clients’ problems. Try to understand what your clients mean -- this will not always be what they are actually saying. Read between the lines. Listen very carefully. Follow up on inferences. If you cut short lines of inquiry you can miss vital pieces of information.

A good example: at the end of an hour-long interview, I found out that an estate planning client was legally married. The fact that she was married completely changed her situation and affected important aspects of my advice to her.

A very good question to ask a client near the end of the interview is “Have you told me everything you think is important for me to know?” It is amazing how often this question leads to valuable information. By eliciting your client’s answers, and not imposing yours or precluding your client’s answers by the way in which you question him or her, you will always find out important facts that would have otherwise been missed. This is crucial to your being able to effectively and completely address your client’s issues.

4. Give good advice about compromising.

Effective lawyering depends on educating clients as to reasonable positions and letting them know that compromising is sometimes (perhaps often) winning. Having said this, it is nonetheless very important to let your client tell his or her “story.” Bear witness to what your client is saying. Sometimes listening to what hurt your client is a very important part of the professional relationship and begins the healing process for your client.

Give your clients a “reality check.” If any of their thoughts are unreasonable or untenable, let them know. Mold your clients toward the idea of compromise (if compromise is possible) early in the process (after they have had a chance to tell their story). Do it gradually by educating your client on the downside of taking an inflexible position. If you think your client is wrong about the possible results of a situation, tell her so and explain your reasoning. Don’t sit silent at a four-way meeting with opposing counsel and opposing party if your client says something dead wrong. If you can gently say that you do not think he or she is correct as a matter of law, you’ve moved the process forward by being truthful and you (and your client) will have gained credibility with the other side.

5. Dig your heels in when you have to – but politely.  

Always seek to maintain good relations with opposing counsel, even on little things. By building trust, rapport, and cordial relations with the other attorney, the process of solving problems and overcoming impasse will be easier and much more likely. It is true in law as in life that (as my mother wisely said), “You catch more bees with honey.” This is an absolute truth in the legal profession. It happens all the time. With this type of groundwork, when you need to dig in your heels for your client, do it respectfully, politely, and unemotionally. Because you have not “cried wolf” previously about unessential things, you will be heeded concerning important things, and will be taken seriously.

6. Don’t withhold advice just because you’re not sure.  

Sometimes the law is not clear, or the results of actions taken may not be clear, but give a client all the possible scenarios so that he or she can evaluate and embark upon a path. Lawyers must give the client the decision on how to proceed. However, when asked, “What would you do if you were in my position?” be honest. Lawyers are trained to spin paranoiac fantasies to present to their clients. Don’t get carried away, and try to give your client some probabilities of any of the fantasies actually happening. This will allow your client to undertake his or her own evaluation of the risks.

7. Don’t jump to solutions.

Creative pondering is a good thing. Solutions come from many places, even in your sleep or in the car when you’re commuting. The nice thing for your client about pondering during off hours is that it is unbillable time. It is often the most creative time you spend on a client’s matter. Believe it or not, lawyers worry about their clients’ situations and want to make it better. That’s why we became lawyers.

Not jumping to solutions is a very important part of our job. If you jump to a conclusion too early, you may have foreclosed better and more creative solutions that take a little more time to formulate. Let time do its work.

8. Don’t get personal.

The relationship of attorney and client is akin to the relationship between therapist and client. That’s why we are called counselors. As in a psychotherapeutic relationship, it is almost always a mistake to bring your own current life or life experiences directly into the discussion between you and your client. Your client has come to your office to deal with his or her own issues, not yours. Anytime you step away from your client’s issues and into your own life (even if your personal experiences are relevant to your client’s problem), you have broken the attorney/client relationship. You can never fully recapture the trust of your client once you have done this. Keep focused on the client’s problems and don’t bring yourself in the room.

9. Make sure your client sees your value.

People generally don’t like to pay attorney’s fees. It is very important that your clients feel that they have received value for what they have paid. Don’t send a bill until you have accomplished something of value. Own up to your mistakes and rectify them on your own time. Make sure that your client’s money is used wisely and in the most cost-efficient way. In your interactions and communications with your clients, detail the progress made so they understand what you are doing on their behalf. Make sure the client is satisfied with his or her interaction with you.

10. Make an independent assessment of the facts and the law.

It is important to get a clear sense of the facts of your client’s situation. A good place to start is through what your client tells you. It is also important to obtain facts independently, and also through opposing counsel, even though some of these facts may not be what you want to hear. The more fact-finding you do (even if some of the facts conflict), the better you’ll be able to work out a solution.

Ascertaining the applicable law can be complex. Always go to the source (case, statute, or regulation) and make your own independent assessment. If you rely on secondary documents, you may be thrown off track. Remember that two things are true: the law is a seamless web (i.e., everything is intuitively and logically based), and the law is sometimes counterintuitive (you cannot always rely on logic to get to the result).