The European Lawyer – Article Embracing the Negative to Achieve the Positive

ThisEULawyer42_2004 is the full, unedited text as submitted for publication in The European Lawyer Magazine:

Dear Madam/Sir;

This is to congratulate you on the recently published article “Lawyers Reflect on their Worsening Profile (Image of the Profession),” ( European Lawyer no. 40). I enjoyed reading it and was happy to note that the profession and its professional press do share the concern over the negative perception of the legal profession present in the significant parts of the societies in which they operate. The longer I am practicing law myself, and I started as a trainee back in 1986, more I feel the need to take into account the widespread negative perception of the legal profession by the societies in which our practices operate.

I am a founding partner of a corporate, commercial and intellectual property practice in Zagreb, Croatia. Following my studies in the US I practiced as a foreign counsel in a Silicon Valley law firm, followed by the stints in the law firms in France, Italy and with a UN agency in Austria. Besides practicing, I now teach various courses on the postgraduate level at the Zagreb University School of Law, participate as a trainer in the international trainings for judges and frequently speak at the various international conferences. I increasingly devote my time to consulting and governmental consulting assignments. I am also active in the fields of mediation and arbitration and am the Chair of the INTA’s (International Trademark Association) ADR Committee’s Associate Outreach Committee. I was prompted by the above-mentioned article to add a few thoughts on the position of the legal profession in the societies.

In addition to the thesis laid out in the above mentioned article, and in order to properly comprehend the situation of our professional reputation, I believe that the legal professionals will hardly ever be able to asses appropriately the issue of negative perception of our profession unless we consider and acknowledge the nature of impact of the legal systems on the societies in which we operate and on the individual clients we serve. What I mean is that the legal systems and the judicial and other processes that they consist of are perceived by the general public as burdensome, cumbersome and opaque at the best and contradictory, incomprehensible and unjust at worst. In more colloquial modern terminology of the service industries which are customer oriented it could only be said that the legal process is not a user oriented process and that the legal system is utterly incapable of bringing the user satisfaction even to many of the parties who actually prevail in a dispute. I believe that this notion should be a starting point for the analysis that the lawyers must conduct if they wish to fully assess the scope of the negative perception of their role.

Of course, this is not to say that I am necessarily becoming skeptical of the legal process in itself. The dispute resolution mechanisms will always need a segment in which adjudication, or administering decisions to the parties with unresolved disputes by an individual or a body that holds mutually recognized authority would remain the principal tool. Not all of the disputes are suitable for mediation, and the criminal justice will always have to be administered. One has to admit that even in the civil disputes many parties do not feel capable, or cannot in spite of their best efforts find common ground which would enable them to completely avoid adjudicated decision by a third party of authority. However, I strongly believe that in this segment there is a paradigmatic shift in the societies in which we practice and an increasing number of the parties in the disputes actually realize that if and when they assume the responsibility for resolving their dispute these disputes do become resolvable without adjudication.

In other words, it appears to me the longer I devote my time to looking at the disputes on a level different from what I do as an advocate of a party involved in it, that there are strong currents in the societies which lead to the increase of willingness to resolve one’s own disputes thus avoiding adjudication process and legal systems altogether. This appears to be due to the ever-increasing understanding that there are very few disputes that will remain unresolved if both parties simply undertake to resolve them. This subtle difference in the position towards the disputes they own, by the individuals and the commercial companies in the modern societies lead to a sea change in perception of the usefulness of the legal systems in their present form. It would be impossible for the lawyers to resist being perceived negatively should they choose to stick to the adjudication of the disputes and the legal systems as they are now because, not only the systems have their deficiencies, but the roles that the lawyers play might significantly increase such deficiencies. One might predict that the market for legal services will be reshaped by the diminishing demand for the positional dispute resolution products and by the likely growth of demand for the interest based dispute resolution products.

I feel that the legal systems as they are devised now are product of the centuries old designs, which were only haphazardly amended to cope with the increased number of cases and more complex relations that are developing in the modern market economies. While long traditions might have been a point of value in a less mobile world, they are increasingly becoming a burden and an obstacle to necessary changes in the world in which the social relations are reshaped ever more frequently. The legal systems were hardly ever seriously redesigned to reflect these changes with the aim to change the basic underlying assumptions on its role and the roles of its participants.

I am further afraid that that the legal systems might never ever get the chance for the sorely needed reform unless the legal education itself gets profoundly reformed. By this I primarily mean that the law students should essentially be taught that their professional goals better be directed towards effectively resolving parties’ disputes rather than perpetuating the disputes through legal positioning and adjudication. The consequence of the “old school” of legal education is that the lawyers are actually getting in the way of their clients in resolving their disputes rather then assisting them with their resolution.

Therefore, I submit that negative perception of the professional role of the lawyers is not due to the aberrations caused by a few rotten and unscrupulous individuals within an army of bright legal knights. What I see is that the banal but negative perception is probably a valid social reflection of a deeply troubled role the legal system and consequently the lawyers have ended up with in their societies. In order to be able to reverse this I think that the lawyers should partially accept responsibility for this unfortunate situation and take proactive approach in trying to counter it. By failing to seize the opportunities to contribute to the redefinition of our role earlier the lawyers risk remaining at the tail of the changes in modern societies.

There must be a better role for the lawyers in the societies, which actually need a lot of assistance in dispute resolution at the critical time when these same societies start to understand that it is much better to get the dispute resolved on one’s own initiative and resources than with the assistance of a sometimes dysfunctional, expensive or unpleasant systems that the modern legal systems became.

Should such a shift in approach occur within the legal profession another age old perception might wither away, that is of the lawyers as non-creative professionals. I always had problems with the division between the creative and non-creative professions, as I simply could not see the difference in the professional output of a, say, advertising professional and a legal professional as long as both of them have creative approach to the matter of their expertise. However, within the modern service oriented economies a position of non-creative lawyer becomes totally untenable and such services unneeded. Of course, both run-of-the-mill advertising and staple legal work will maintain their respective market positions, but only truly creative professional will command the prime professional positions and will be perceived as the worthy leaders of their professions. The point here is that it is much more natural to be creative as a lawyer when interest based approach is use, than when confined to the position based approach to the dispute resolution.

My involvement with mediation came almost as a direct result of my attempts to add value to the regular legal practice I was providing to my clients. I perceived advising and representing the clients within the confines of their positions as unsatisfactorily devoted to resolving my clients’ true problems. I realized that my clients not only accept but also actually do expect that when they pay for legal advice to receive the added value in the form of analysis other than their own. Moreover, it appears to me that most of the clients not only do not mind that their positions are critically analyzed for them, but that they are satisfied with the added value they receive when they are empowered to resolve their disputes themselves — based on their interests rather than positions. I think that the Bar Associations should examine these issues and incorporate adequate provisions in the professional codes of ethics, stimulating legal professionals to open up their clients’ positions and affirm their interests.

Initially, I perceived that no one likes to be embroiled in a legal dispute and everyone is grateful if someone (anyone) helps them get out of a legal dispute as soon as possible. If such help comes from the professional, who points out that not only the legal dispute is avoidable but that the dispute is resolvable by other means the clients tend to be very satisfied. The clients generally feel that once a dispute arises it is far better for them having their problem resolved ASAP, than multiplying their problems by stepping with their dispute into the legal system’s arena. Therefore, I concluded that most of the clients when they find themselves involved in a conflict leading to a dispute need assistance which will keep them out of the legal system’s reach while resolving their dispute rather than being pushed into the field of legal system to resolve the dispute form them. Naturally, this does not, in the modern societies actually mean less work for the lawyers, it just means offering different products. As a consequence, if the right product is offered the perception of usefulness of our profession might start to improve.

In other words, when an individual or a corporation finds himself or herself in a dispute they understand that they ended up having one problem. In order to get “cured” of a problem they go to see a lawyer. Because of the characteristics of the legal systems described, this ends with being embroiled in a perceived second problem. Accordingly I prefer to see an attorney’s role in providing legal services to his or her clients as helping them principally to stay out of the legal system. Preventive counseling and effective dispute resolution techniques are my preferred tools to exercise my profession nowadays, although of course I still do litigate when this is the informed client’s choice. I prefer to use the legal thinking acquired through my legal education just as a fact-systemizing tool, and stop before it turns into a legal position building exercise, thereby assisting clients not to stray into the position based dispute.

Fortunately, at the same time I discovered that this type of practice is financially tenable and that counseling remains a stable economic basis for a law firm’s growth. At the same time I found out that many clients do appreciate a law firm with such a philosophy and that it provides for a firm ground for building stronger client relations.

My intuition is that the most individuals or corporations, actually a vast majority of all who end up using the legal processes on their lawyers advice, and even those who win their legal proceedings do not necessarily feel positive about the time they spent within the legal arena. These were the perceptions that lead me to conclude that lawyers instead of assisting their clients’ actually do add another layer to their problems and render the situation more difficult for them. My conclusion is that a profession who performs within such framework can hardly ever regain its social respectability, and that it is not a problem of a few individuals who might have misbehaved as implied by Mr. Peter Williamson, President of the Law Society of England and Wales in the above-mentioned article. Rather, it is simply inevitable that, unless the lawyers as a profession redefine their mission, their methods and their attitude towards their clients, they will continue to be perceived as a negative social force for their role in blocking the effective resolution of the disputes.

Accordingly, I started publicly proposing for such a redefinition that would include changes in the legal education. The central change could be described in an analogy taken from my efforts in the mediation arena. I propose the changes of the “alternative” dispute resolution term in the “effective” dispute resolution as I hold that litigation and other traditional legal avenues should in the future represent alternative means of dispute resolution while the lawyers should embrace mediation as a mainstream means of dispute resolution. Of course, it is necessary that law students receive appropriate training at their law schools for such change to occur.

Therefore, although I support the general tenor of the article I am convinced that a “Love Your Lawyer Day” will not ever be celebrated before we lawyers reeducate ourselves so to understand the negative role our practices have developed to represent in our client’s lives. However necessary they might be in their own right, the “pro bono” and “spot the negative colleague” initiatives will never alone suffice to turn around the perception of the unloved profession.

At the same time I am convinced that the lawyers are uniquely suited to play this role of dispute “doctors”. Legal education does turn the lawyers into the keen observers of the facts and their experience in working with the parties teaches them to look at the dynamics of the disputes on an abstract level. This means that the lawyers, unlike most other individuals do get to see a number of disputes in which they are not one of the parties involved. This detached perspective on the disputes teaches them how to distinguish the phases of psychological involvement that the parties develop within the disputes they get embroiled into. Most of the people, besides the psychologists, do get to learn about the disputes only on the personal experiences of their own involvement. When the lawyers move away from using the legal systems of adjudication, get the additional mediation training they usually turn into powerful doctors for disputes. They enable themselves to serve their societies in a role of truly distinguished individuals with a true authority based on the results and wisdom rather than to the belonging to an institutionalized order perceived as self serving clique of money obsessed, unscrupulous hypocrites. Such a description still sounds harsh after the decades of being increasingly loudly said into the legal profession’s face but I hope that this small contribution of thought might add to the worthy effort our profession started and on which I learned from your interesting article.

With best regards, Mladen Vukmir

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