'Comprehensive law' makes the case for a kinder, gentler law practice.
Public dissatisfaction with the legal profession and with the justice system as a whole is not new--lawyer bashing has been a popular pastime among poets and pundits for millennia. And with little support from other professions, attorneys have been left to defend the legal system largely on their own. In forums both public and private, lawyers have argued the case--in typical adversarial fashion--that every civilized society is built on the foundations of a strong justice system and, of course, the lawyers who work within it.
But a growing minority of lawyers are trying a different approach: They're spending a lot less time arguing and a lot more time listening--especially to their clients.
These lawyers are part of a movement that has, for the most part, broken away from the traditional adversarial model of advocacy. That model, they say, often falls short of serving people's needs--especially the need to be heard--leaving clients angry, hurt, and dissatisfied.
Susan Daicoff, a visiting professor of law at Florida Coastal School of Law in Jacksonville, has been studying what she has dubbed the "comprehensive law" movement. It incorporates about a dozen practice variations that go by names like preventive lawyering, collaborative lawyering, and creative problem-solving.
Among the variations, Daicoff said, "some are nonadversarial, some are alternatives to litigation." All share two underlying themes: "One is what I call optimizing human well-being," she said, "and the other is what [collaborative lawyer] Pauline Tessler calls 'rights plus'"--which, loosely defined, means expanding the scope of traditional legal practice beyond clients' legal rights and responsibilities. In deciding how best to handle a case, lawyers who practice comprehensively do not downplay those rights and duties, but clients' physical, mental, emotional, and even spiritual health also weigh heavily in the lawyers' decision-making process.
Can a plaintiff lawyer do all that and make a living, too? Yes, and "a very comfortable living," at that, said Richard Halpert, of Kalamazoo, Michigan. He said he has used many comprehensive-law principles in his personal injury practice since he graduated from law school in the early 1970s.
Halpert's firm, which concentrates on representing plaintiffs in burn, spinal-cord, and brain-injury cases, has set several records for verdicts and settlements in the state. But getting big awards for clients is not the firm's priority, Halpert said.
"In the traditional personal injury practice, the object is to get the client as much [compensation] as possible," he said, "but we don't presume that will serve the client's best interests."
Two wrongful death cases the firm recently handled, Halpert said, had nearly identical facts but very different outcomes. In each, a "head of household" was killed while he stopped for construction traffic on an interstate highway and was rear-ended by a semi-tractor trailer.
"In one case, the client was very litigation-averse. She was more interested in having a reasonable amount of money to live on that was carefully structured over time," Halpert said. "In the other case, the client wanted the largest settlement possible. She didn't care how emotionally painful the process was. She didn't care how long it lasted."
Halpert said that although the first case settled for significantly less than the second, the first client went away happy. "She was satisfied that her needs had been met and said she didn't want to go any further with the litigation," he said.
So how does a lawyer who settles cases for less than what they might be worth end up setting state awards records? By taking the time--a lot of time--to listen to clients. Each of the firm's five lawyers spends hours in "one-on-one" sessions with clients, learning what is needed to make their lives better. The firm houses a library of self-help books for clients' use, and the lawyers "spend significant time reading, studying, and attending lectures" on how to be supportive, Halpert said.
Although these sessions' primary goal is helping clients heal, they also give the lawyers unique insight into how the clients' injuries have affected every aspect of their lives. And this, Halpert said, makes the lawyers better able to represent clients' losses during settlement negotiations or trial.
"Say you have a client who has a broken arm, an injury that normally settles for $15,000. You could settle for that, and you'd get a fee of $5,000. But if you got to know the client well and really understood what a broken arm did to his or her life, you'd find out that $15,000 is not nearly enough to compensate the client for all that was lost. You can't even wash [yourself] if your arm is in a cast."
"In cases like that, we'd spend all this extra time getting to know the clients as people, and we'd ask for $150,000. The insurance adjuster would balk, we'd go to court, and we'd get $150,000. In the next case the same thing would happen, and we'd get the same thing," Halpert said.
Although the firm favors settlement, Halpert and the other lawyers will don the trial lawyer's warrior armor if necessary. If opposing counsel "only knows hardball and absolutely refuses our invitation to a better way, we can play hardball, too. And we do," he said.
Halpert notes that his willingness to go to court sets him apart from other comprehensive law practitioners who eschew the courtroom entirely. For example, those who practice "collaborative law" represent their clients only as long as the dispute remains outside the courthouse walls. This type of practice has gained the most ground in the family law arena. Typically, the parties and their lawyers sign four-way contracts providing that the lawyers agree to represent the parties for settlement purposes only. If the parties reach an impasse, the lawyers drop out and the parties are free to seek other representation.
Other comprehensive lawyers who avoid courtroom appearances are those who practice "holistic" law. "The basic premise of holistic law is that nothing is excluded from consideration" in helping clients determine what they need to make themselves whole, said Michael Dolich, who practices holistic law in Philadelphia.
A key difference between the traditional and the holistic models of representation is helping clients take charge of their own healing. "When I have a client come to me with a legal problem, I don't think about what I think is the best result," Dolich said. "I spend time talking to the client first to find out his or her life goals--long-term goals."
Often, he finds that what clients need more than anything is for someone, usually the defendant, to listen. "They need [defendants] to hear them and know the harm that they caused. And this is best done in mediation because in the court system, a lot of empowerment is taken away from plaintiffs to tell their story their way," he said.
"For example, I was in mediation [in a recent employment discrimination case]. My client and I were in one room, and the CEO of the company, the personnel manager, and their lawyer were in another. The mediator kept going back and forth between the rooms, telling one party what the other said, and [we asked], 'Why can't we just talk to them in person?'
"He said we couldn't do that--it wasn't part of the process. And I said, 'Well, why not? Isn't that why we're doing mediation instead of litigation?' This went on and on. Finally, the mediator let us in to talk to them, and the case settled in 20 minutes."
If one of Dolich's cases reaches an impasse, he brings in outside counsel to litigate.
Mediation is central to William van Zyverden's holistic practice in Middlebury, Vermont. He founded and serves as the director of the International Alliance of Holistic Lawyers, which provides referrals, education, and support to about 300 holistic practitioners.
Although van Zyverden will represent clients in court, he cautions them that going before a judge means losing some control over the outcome of the case. "I tell them to be ready to accept any outcome that they're given, because the judge doesn't know them any better than someone else they've never met before. And I ask, 'Wouldn't you rather own the resolution than give it to someone else to decide?'"
Some critics of comprehensive law say that it's mostly what any good lawyer does anyway--listen and counsel. This may be true for many older lawyers, Daicoff agreed, but she noted that the role of lawyer as "sage adviser" was supplanted by the role of the lawyer as "hired gun" during the civil rights battle in the 1960s.
"We kind of lost the role of the lawyer as an adviser or even as a listener, and so the lawyer just became sort of an instrument instead of being a partner with the client," she said.
Critics might be surprised to learn that many of the principles and theories central to comprehensive law are already at work in "problem-solving courts" across the country. These forums--which include drug treatment, mental health, and community court--often focus on altering the chronic destructive behavior of criminal defendants.
Like the many variations of comprehensive-law practice, problem-solving courts incorporate principles of therapeutic jurisprudence, a study of the therapeutic and antitherapeutic consequences of law.
"It doesn't suggest that therapeutic objectives need to trump other ones, like due process and other cherished values of law that need to be maintained. But it examines whether an ethic of care can be brought into lawyering and judging," said David Wexler, a professor of law and psychology at the University of Arizona. Wexler and Bruce Winick, a law professor at the University of Miami, introduced the concept of therapeutic jurisprudence in a paper they delivered in 1987 to the National Institute of Mental Health.
Problem-solving courts have been so successful that the American Bar Association adopted a resolution in 2001 calling for their continued development. The Conference of Chief Justices and the Conference of State Court Administrators passed a joint resolution in 2000 to, among other things, advocate for resources to apply the principles and methods of problem-solving courts in states' general court systems.
Law schools are joining the movement as well. Daicoff, Wexler, and Winick teach classes related to comprehensive law at their schools, and California Western School of Law houses the Center for Creative Problem Solving and a separate National Center for Preventive Law, both of which promote education and research in nonadversarial problem-solving. "The media portrays lawyers as fighters," the school's Web site says. "Although this role is sometimes appropriate, clients and society are increasingly asking lawyers to approach problems more creatively."
Thomas Barton, a law professor at California Western and coordinator of the school's preventive law center, said that in the last 30 years law schools have offered more courses that emphasize listening, counseling, and negotiation skills, partly because professors and students have demanded the change.
"There's been a change in philosophy: It is as important to prepare for practice as to get through the bar exam," Barton said.
Daicoff said she has been stunned by how quickly comprehensive law is catching on. "I just keep hearing about more and more courts and bar associations and state groups of legal professionals wanting to know more about it," she said. "Therapeutic jurisprudence is now a commonly accepted thing in the national justice system. Collaborative law is pretty well known now. The fact that court systems and the judges have picked up on it, I think, is a strong indicator of success."
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|Date:||Apr 1, 2003|
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