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Attendees at CodeX FutureLaw 2017 were reminded of some obvious but often forgotten lessons of being a lawyer. One is that clients do not understand the law. This seems obvious, right? Well, not really.
Lawyers often forget someone without a law degree is at the other end of that brief or contract, trying to understand it. Few people, for example, realize that the EULA we all sign (but rarely read) has an arbitration clause. Researchers testing how many people understood the arbitration clause found that only 1 in 10 knew the EULA they had just read actually included the clause — and very few understood its meaning. That is terrifying.
The people we represent may not have an undergraduate degree much less a J.D.; often they have barely completed high school. We need to stop and think every day about who we truly represent. Our clients? Ourselves? The legal profession? All three interests should be interconnected and centered on the client.
Unfortunately, that is not always the case.
By relying on methods used outside the legal profession to solve problems, you can build a more client-centric law practice. Most of us have mastered IRAC (or sometimes FIRAC), where the focus is the issue and not the client, but we need to embrace alternatives such as design thinking, where empathy for the client is the focus.
What if we could use both problem-solving methods by simply adding a human element to IRAC?
In “How to Tackle Your Toughest Decisions,” Harvard Business School professor Joseph L. Badaracco poses five questions leaders should ask to improve their odds of making sound judgments “in the grayest of gray areas.” One question focuses on the human element. Like design thinking, it focuses on the people the leader represents and how the decision will affect them.
What if we do the same in our law practices?
The chart below explores how the model could look if we combined IRAC and design thinking with Badaracco’s questions. Would we get a more complete picture of a client’s scenario? Rather than focusing on the rule of law or a lawsuit, would we be more likely to devise a practical, human-centric resolution?
|FIRAC||DESIGN THINKING||BADARACCO (HBR)|
|Facts||Empathy||What are the net, net consequences of all my options?|
|Issue||Define||What are my core obligations?|
|Rule||Ideate||What will work in the world as it is?|
|Application||Prototype||Who are we?|
|Conclusion||Test||What can I live with?|
Since most lawyers know FIRAC inside and out, let’s focus on how to combine it with the other two methods to arrive at an easier way to solve problems. Yes, “easier.” This hybrid problem-solving mechanism allows you to:
Here’s what the combined problem-solving method looks like. We even have a new name for it — “CIRSO”:
We want the client to be at the center of this new universe, so we start with questions that center on the client.
1. Who is your client? Age, gender, race, education level, employment status, title, marital status, family members.
2. What is your client’s ultimate goal? This is tough to answer. What clients say they want versus what they really want is not always consistent. Think back to your intake conversation and try to identify the client’s underlying wish. Do they really want to get divorced? Do they really want to file a lawsuit? Or do they want to be acknowledged, appreciated or apologized to? This requires some analysis, a review of your intake questionnaire and an understanding of who your client really is (hence question No. 1).
3. What are the facts? Here, rely on your insight to get at the facts of the case and holistically assess the situation. This will help you get the “real world” picture (which we’ll discuss later) and assess the situation as it is versus as your client wants it to be.
1. What is the issue here? Yes, you can finally use your analytical skills and figure out the “issue” as you always do. What are the legal issues that your client is facing? List them and move on to the next step. Do not begin your rules and application process here. We’ll get into that method in the next step.
2. What are the personal issues here? How does this impact your client’s health, work, family and relationships? Think of all the possible impacts and write them down. As Badaracco advises: “Thoroughly and analytically consider every course of action available to you, along with the full, real-world, human consequences of each. What could we do? And who will be hurt or helped, short-term and long-term, by each option?” In other words, how can your clients be affected for the better or worse by the situation they are facing?
1. What legal rules apply to this issue? This should be a familiar step. As you always do, think of all the rules that could apply to this case and jot them down. Do some research, but don’t delve too deeply just yet.
2. What are your core obligations? This is where ethics rules come in. What are your legal obligations? Think about the rules of professional responsibility. Sure, they outline the rules you must abide by in your practice, but what do they really mean? Are they meant to help you avoid all emotion, all reality, and detach yourself from the situation? Or are they reminders to think of your client and your human obligation to them? If you were advising a friend, would your advice change from the advice you give your client? Think of all your duties and obligations, consider how you would interact with the people who mean the most to you, and then outline your duties and obligations in this situation. Do you need to be more transparent about the client’s options? Are there alternatives to litigation? Even if your client wants to sue, is this really in their best interest? What about the emotional and financial impacts?
3. What will work in the world as it is? Aside from your ethical obligations, also look at the reality of the situation. As Badaracco suggests, this question “pushes you to look at [the] problem in a clear-eyed, pragmatic way — seeing the world not as you[r] [client] would like it to be but as it is.” Sure, they want $1 million and a big win, but what are their chances of getting that win? Is there a more realistic solution that would increase the likelihood of a favorable outcome, even if it doesn’t match their fantasy? “Of the possible solutions … which is most likely to work? Which is most resilient? And how resilient and flexible are [they]?”
1. Application. As always, apply the rules to the issue at hand. What are the standard legal applications to your problem, and what possible outcomes can you come up with?
2. Prototypes and other solutions. Besides the legal rules and applications, what other options does your client have? Can you come up with additional, non-legal solutions like negotiation, bypassing the legal matter altogether, or a third option that works best for your client and the opposing side? Outline these additional possible solutions so your client can see them clearly and understand them. You can still bill for this work, and in the long run, you’ll build the type of trusting relationship that few big lawsuits could achieve.
3. Who are we? As stated above, building trusting relationships by presenting your client with all options will benefit you in the long run. Doing so, however, requires that you look at yourself as a lawyer, an advisor, a counselor and a member of the legal profession. Ask yourself: Who do you want to be? Who do you want to emulate or present to the world? What about your team members? How are you representing them? Your partners, associates and staff? Decisions often have impacts well beyond you and your client. According to Badaracco: “[T]his question asks you to step back and think about your decision in terms of relationships, values, and norms. What really matters to your team, company, community and culture?” How you answer this question may impact the solution you present to your client, how you present it, and your overall outcome.
1. Conclusion. Here you can come up with the conclusion of your case based on the rule of law, and present it to your client in the form of a discussion — or the complaint itself, if that is the route your client has chosen. If you present them with alternative options, you may not need the complaint.
2. Test. If you have presented several options, you can test them out by talking with your client and discussing the possible ramifications of each choice; or you can simply present your top choice to the other side and see if they agree. This may not be a long-term litigation strategy that will rake in thousands of dollars, but if your culture and values center on helping your clients find the best solutions to their problems it will bring more equity in the long run.
3. What can I live with? If you have completed all the steps above, this question should be easy to answer. Once you present your clients with all of their options and alternatives, you have fulfilled your duty and obligation. If you chose to present only the standard option of suing (including the legal ramifications and adoptions), is this something you can live with? Have you really “advised” your client of the options and counseled them? “Ultimately you must choose, commit to, act on, and live with the consequences of your choice,” Badaracco says. “Imagine yourself explaining your decision to a close friend or mentor — someone you trust and respect deeply. Would you feel comfortable? How would that person react?” If the answer is favorably, then you’ve done your job. If the answer involves disappointment and disapproval, reassess and act accordingly. We all make mistakes, but if you do so deliberately and without regard to your clients and other stakeholders, then you will have a tough time living with them.
As you can see, the three problem-solving methodologies go hand-in-hand, but they require that you expand the way you think about each legal issue. It’s not just about the legal rules and obligations — it’s about the people involved, whether they’re parties to a suit or not. Here is a worksheet you can use every time you have a new legal issue in front of you. I hope it adequately serves you, your firm, your clients and your community.
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You may be called on to write an obituary on behalf of your firm. Consider what the decedent would want people to know.November 6, 2018 0 0 0