Making Law School Practical

Washington and Lee University School of Law has announced a plan to replace all third-year academic classes with hands-on "experiential" learning.  Recently approved unanimously by faculty, the new curriculum will be phased in over 3-4 years and teach practical skills by using simulations and real-client interactions.  It will also emphasize non-traditional topics like attorney-client communication, working in teams, problem-solving and civil leadership. 

The revised program is in response to firms, corporations and judges urging greater law school emphasis on professionalism and learning in context.  Following the March 2007 Carnegie Foundation for the Advancement of Teaching report on inadequacies in law schools, a network of 10 law school launched a project that aims to improve how law schools operate and teach.

Another relevant area that law schools would be wise to teach is leadership and management.  Leadership and management skills are increasingly important to both the individual lawyer's career and to the success of his/her law firm/law department.  Orrick, Goodwin Proctor and a number of other law firms send their young partners to Harvard  or other business school leadership courses, and/or hold off-site workshops for junior partners on leadership and law firm economics, management and team-building.  But partnership is often late to be grooming those skills.  The next bold step will be for law schools to introduce these critical subjects, and start identifying and honing associated skills, while lawyer students are mastering legal subject matter.

The Secret Life of Success: Spitzer and Other Masters of the Universe

Of the gallons of ink dedicated to analyzing the eye-popping follies of Eliot Spitzer, by far the most trenchant view is contained in the March 14 New York Times OpEd piece by David Brooks. Permit me to quote whole sections of his article.

"Our social structure seems to produce significant numbers of people with rank-link imbalances. That is to say, they have all of the social skills required to improve their social rank, but none of the social skills that lead to genuine bonding. They are good at vertical relationships with mentors and bosses, but bad at horizontal relationships with friends and lovers.

[In school,] they rack up great grades and develop that coating of arrogance that forms on those who know that in the long run they will be more successful than the beauties and jocks who get dates.

Then they go into one of those fields like law, medicine or politics, where a person’s identity is defined by career rank. They develop the specific social skills that are useful on the climb up the greasy pole: the capacity to imply false intimacy; the ability to remember first names; the subtle skills of effective deference; the willingness to stand too close to other men while talking and touching them in a manly way.

And, of course, these people succeed and enjoy their success.

They treat their conversational partners the way the Nazis treated Poland. They crush initial resistance, and the onslaught of accumulated narcissism is finally too much to bear.

[But] then, gradually, some cruel cosmic joke gets played on them. They realize in middle age that their grandeur is not enough and that they are lonely. The ordinariness of their intimate lives is made more painful by the exhilaration of their public success. If they were used to limits in public life, maybe it would be easier to accept the everydayness of middle-aged passion. But, of course, they are not.

And so the crisis comes...

These Type A men are just not equipped to have normal relationships. All their lives they’ve been a walking Asperger’s Convention, the kings of the emotionally avoidant. Because of disuse, their sensitivity synapses are still performing at preschool levels.

So when they decide that they do in fact have an inner soul and it’s time to take it out for a romp ... . Well, let’s just say they’ve just bought a ticket on the self-immolation express. Some desperate lunge toward intimacy is sure to follow, some sad attempt at bonding. Welcome to the land of the wide stance."

 

Decorum, Virtue and Other Values in the Age of the Internet

Law firms are often bedeviled by the on-line shenanigans of their young (and sometimes not so young), who can carelessly leave a footprint permanently in cyberspace.  While these irritations don't often rise to the level in titillation value or PR devastation as some of the old-tech crimes perpetuated by errant employees/partners, like the Cravath tax lawyer who solicited children for sexual favors, those types of cases are (thankfully) fairly rare and have a limited media shelf life.  Blogs and social networks, on the other hand, seem to just keep on giving and giving, although often an unwelcome PR black eye. 

Here's some recent developments for law firms in the cyberspace sandbox. 

Allen & Overy's London office recently issued a ban on accessing the social networking website Facebook in light of concerns that the impact of downloading videos from the site could compromise the firm's IT performance.  Within days, complaints forced a turn-around by management, nominally on the grounds that the site is used for business as well as social reasons.  Currently there are 932 members on the A&O network on Facebook, a nice bump over the 600+ when the firm tried to shut it down. Internet comments related to the episode ran the gamut from condemnation of the firm's leadership for being so easily swayed to one person's plea for more such bans so that work could get done.  

Arguments for/against law firm blogs/social networks usually include claims that they are useful/extraneous for business development in the internet age, that other businesses do/don't (investment banks often don't, for example) allow workers to access them, that social/work boundaries should/should not be imposed, that the sites are time-wasters/efficiency drivers.

Reflecting these mixed feelings, evidently approximately one-third of law firms have Facebook networks, and two-thirds of law firms have blocked them.  Big firms with networks on Facebook include at least eight of the largest: Skadden, Arps (with 379 members), Baker & McKenzie (728), Jones Day (286), Latham & Watkins (291), Sidley Austin (199), White & Case (370), Shearman & Sterling (225), and Kirkland & Ellis (192).  While Mayer Brown and Weil, Gotschal, among others, have apparently banned them.

As a cultural matter, these kinds of social networks can be a very useful tool in building community and connection at firms that have long been known for neither.  Their availability resonates with Gen Xers and Yers, who are most comfortable with an open technological stance.  And there are at least nascent efforts to truly use these types of networks for business development purposes.

LegalOnRamp, a relatively new site being developed in conjunction with Cisco, envisions an  interactive brainstorming locale involving in-house and outside lawyers, who can meet and discuss substantive legal topics, as well as management and personnel issues.  Mark Chandler, GC at Cisco, touts this type of technological meeting ground as the model for how law will be conducted in the future.  Instant access to not only profiles, expert articles and form provisions, but also substantive issue forums and interactive document building certainly make it a useful tool.  Another feature, being able to see who each party is connected with-- their "friends," in Facebook parlance, also efficiently builds reliable connections and makes for more informed referrals.

As to independently run "insider" blogs, most firms have no ability to influence what is on them other than by using their bully pulpit.  The latest controversy involves a blog run by two unnamed Skadden Arps employees-- with admittedly no authority to speak for the firm-- that held a "Hottest Female Associate" contest, with photos of the candidates included.  The contestants were neither notified nor asked for permission to post their names/photos and a few photos were of an obviously personal nature (don't rush to Google it now--the photos have been taken down). 

Much to the apparent surprise of the blog-minders--"Damn, we feel like we were called to the Vice Principal's office today and had our knuckles wrapped (sic)."-- Henry Baer, chairman of Skadden, wrote an email to the firm recognizing the prevalence of blogs but weighing in on the inappropriateness of the contests, which "does (sic) not reflect our values and standards of behavior... We urge the authors of the blog to consider both the privacy and feelings of the affected attorneys and to discontinue the contests." 

Several points seem worth noting regarding this particular standoff.  While the female contest had already been decided, the still outstanding "Hottest Male Associate" contest was promptly cancelled by our erstwhile bloggers. Also, it is interesting that Baer's objections were confined to the impact of the contest on the attorneys involved and other attorneys at the firm, who were concerned and embarrassed.  No doubt he had good counsel on the necessity to counter any appearance of a hostile workplace.  But several comments on the blog make it clear that there is potentially another kind of  financial downside:  the bloggers risked turning off clients and employment candidates as well.

A retort to Baer's letter by the bloggers--"We're not quite sure what Skadden's "values" are (or, for that matter, the Firm's "standards of behavior")"--is perhaps the most troubling aspect of this little imbroglio.  See our upcoming entry Joining the British in Hunting for an Identity on the importance on both sides of the pond of knowing who you are and what you stand for as a firm, and effectively inculcating that into the culture.

A corporate real estate lawyer at Jenner & Block, Jennifer Sara Levin, recently founded  Legal Intelligence, an online platform connecting law school students with top-tier firms.  A pilot program involving three law firms and her alma mater, Northwestern University School of Law, is running online at http://www.legalintelllc.com. The idea is to help students find the law firm that fits them best, partly through online video conferences.

"It's like a Match.com for law students," Levin said of her start-up.

Law firms pay to participate, Levin said, because they want to find law school graduates who aren't just qualified but who also share their firm's values. Often, Levin said, top-tier law firms end up with graduates who don't fit their culture. "There's no way to do it in a 20-minute interview. You can't get enough information to know if this person is the right cultural fit," she said.

There's that "v" word again.


Taking "Bah Humbug" out of Success in the New Year

Is living a life filled with distrust and deception the price of achieving professional success?  As we head into another year, it is a query worth pursuing.

Steve Katz, adjunct professor at Northwestern University's Business Institutions Program, points out a bestseller published in 1998 that purportedly draws from centuries of powerful leaders (on the order of Machiavelli, Talleyrand, Bismarck, Catherine the Great, Mao, Kissinger, Haile Selassie, etc.) for the best strategies for achieving business success. 

The problem with The 48 Laws of Power by Robert Greene (designed by Joost Elffers) is that virtually every one of these "laws" are counter to most current notions of business ethics and best leadership practices, and in some cases contravene a number of other generally accepted precepts as well.  Which doesn't mean that there aren't plenty of people out there who nonetheless following these "laws."

Mastering one's emotions and perfecting the arts of deception and indirection are, the author asserts, the essential keys to success. Here are some examples:

  •   Law 3:    Conceal your Intentions
  •   Law 7:    Get others to do the work for you, but always take the credit
  •   Law 11:  Keep people dependent on you
  •   Law 21:  Play a sucker to catch a sucker-- seem dumber than your mark
  •   Law 27:  Play on people's need to believe to create a cult-like following
  •   Law 33:  Use each person's weakness as a thumbscrew you can turn to your advantage
  •   Law 44:  Disarm and infuriate your enemies by mirroring their values and their actions

While mastering one's emotions is a worthy and productive goal that few fully attain, recent research shows that using that skill to suppress emotion at the workplace will not produce much success.  Lack of effective use and conveyance of emotion, particularly by the leader, is most likely to produce a working group that is not cohesive and not satisfied. 

Perfecting deception and indirection would hardly seem to be what would distinguish anyone from the crowd these days.  And in a post-Sarbanes Oxley world, wielding deception and indirection as tools of management could possibly lead to the wrong side of the bars .

What is not particularly surprising is that the books that Amazon.com identifies as most often bought along with 48 Laws of Power are Get Anyone to Do Anything; Never Feel Powerless Again by David J. Lieberman and The Mystery Method: How to Get Beautiful Women Into Bed by "Mystery" and "Lovedrop."  (Was that a collective rush to Amazon?)

The point is that these kinds of  "power" plays are most likely the province of people who feel they lack influence, allure, value.  The sorry result of resorting to these tactics is that, whatever success is achieved in the short run (and I'm not assuming there usually is much), in the long run not only is there no success, but the journey to that unsucessful end will have been quite an unpleasant one for both the "power player" and his/her team.   

A better stance would be to do the opposite of what each of these rules suggest: 

  • Make your intentions clear
  • Give credit to others even when you have done some of the work
  • Provide the support that can set your team free
  • Be a source of information and inspiration to those working with you
  • Give others the gift that you believe in them
  • Show how each person's strengths can help them and their team work better and happier
  • Take a stand for your values and make sure your actions follow suit

So, let us take the opposite of another of these "power laws", Law 20 (which advises not to commit to anyone or anything), and commit to a new year of achieving the kind of power that results from using both emotions and intellect to effectively and honestly build trust and respect at work.

Happy new year!

 

 

Building an Ethical Culture

One of the requirements of the Sarbanes-Oxley rules for publicly traded companies is that they demonstrate that they are promoting an "ethical culture" in the workplace.  What does that mean?

"The Manager's Book of Decencies:  How Small Gestures Build Great Companies" by Steve Harrison, chairman of Woodcliff Lake, N.J.-based Lee Hecht Harrison, the employee outplacement arm of Adecco Human Capital Solutions, a division of Adecco SA of Glattbrugg, Switzerland, is an attempt to answer that question.

Mr. Harrison's contends that an ethical culture is the result of many small, and sometimes large, gestures made over a long period of time, with the driving force coming from the top.

"Being decent isn't about being nice... or spending more money-- it's about treating people fairly," Harrison claims. He also believes that good role models at the top have certain common traits. Those Harrison acknowledges as outstanding role models are Colgate-Palmolive Co. chairman Reuben Mark, Nucor Corp.'s former CEO Kenneth Iverson (who died in 2002), Campbell Soup Co. president and CEO Douglas R. Conant, Southwest Airlines Co. chairman Herbert Kelleher, and Dial Corp.'s former president and CEO, Herbert Baum. 

These five leaders exhibit what Harrison calls a high level of "moral intelligence," which is marked by humility and honesty during both good times and bad.

If employers can pay attention to the issues that matter to their employees, "like finding some kind of fulfillment in the job they come in to day after day...then they're on their way to creating a culture of decency which is critical to attracting, retaining and engaging employees."

The Superman General Counsel

Behavioral science is not often invoked in the halls of law departments, but maybe it should be.  Two recent articles highlight the importance to a GC's success of understanding why people think and act as they do.

General counsel are in the position of having to reconcile two jobs: being both a business partner in the management of the company's business and the guardian of the company's integrity.  One aspect of their work requires creativity, risk-taking and far-sightedness.  The other requires careful scrutiny of every corporate action in the short and long term for potential regulatory, liability and just plain reputation pitfalls.  Achieving high productivity with high integrity might strain even Superman's talents.

An article in Corporate Counsel by Ben W. Heineman Jr, former GE senior vice president-general counsel, entitled "How GCs Can Avoid Being Caught in the Middle" recites some of the recent scandals that attest to how difficult that balancing act can be:  the fraudulent financial practices at Enron, the pretexting at Hewlett-Packard Corp, and the wave of options backdating.

Perhaps what chilled GCs to the bone most recently were the guilty pleas by Purdue Pharma L.P., its president, GC and former chief medical officer to misleading the public about the drug OxyContin's risk of addiction.  They have agreed to pay a total of $634.5 million in fines.  Rather than relaying focus group concern about potential for abuse, Purdue Pharma gave false information to its sales representatives that the drug was less addictive than other painkillers.

Heineman mentions a number of attributes that can help GCs successfully straddle their two roles.   Vis-a-vis the other corporate managers, the GC must have the ability to stand his/her ground on clear illegalities and to make sure he/she has enough time to assess those situations that are not clear cut.  And GCs must be able to take those stands in the pressure-filled environment of a board meeting where the CEO is likely to be a ferocious skeptic and many board members will side with the CEO.  See our July 18, 2007 entry on Promoting an Effective Board about the importance of personal attributes in good decision-making.

The Texas Lawyer article "It's All in Your Head:  Cognitive Theory Can Help GCs Lead Organizations to Better Decisions" by Michael Maslanka, a managing partner at Ford & Harrison in Dallas, contends that a GC's real power--the ability to influence decisions-- comes from understanding the way people think, which requires tapping into cognitive science.

Maslanka lists a number of biases that people in general and managers specifically can suffer from if they aren't on the alert: 

  • The bias that there is only one cause when something bad happens
  • The tendency to focus on conclusions and generalities instead of specifics
  • Hardwiring that makes it easy to believe accusations and hard to disbelieve them
  •  A confirmation bias, which only admits facts that support our beliefs (and further reinforces our belief bias)
  • Overreliance on what is first heard
  • Resistance to change that can only be overcome with practice, practice, practice

Maslanka encourages GCs to be open to all possibilities and to question rather than dictate.  Heineman also points out the importance of maintaining within the law department a culture that welcomes, even requires, lawyers to raise concerns about financial, legal, ethical or reputational issues.  We refer to this as a "culture of dissent"-- one that invites concerns, follows up on them and does not punish anyone for raising them, but rather praises them.  See our March 16, 2007 entry on the article Handling Conflict and Dissent in Law Practice (and Life).

While it may not be mind reading, being cognitively aware of your own personal attributes and biases, as well as others', can help steer you toward that Superman performance to which all GCs aspire.

 

Banking Our Image

Burnishing an image that is bankable is what every professional tries to do--both for him/herself individually and for the profession as well.  Doctors take bed-side manners lessons, the NYPD are being instructed on common courtesies.  What about lawyers?  What do they do to bring out the gold?

From the looks of things, not much.

A Harris Poll annually asks the question “Who would you trust?” about various professions.   Doctors, teachers, scientists, police officers, professors, clergymen and military officers routinely end up at the top of the trust chart, garnering more than 70% of the votes. 

Lawyers are usually found settled at the bottom, where members of Congress, pollsters, trade union leaders and stockbrokers rank above them with 35% or less of the vote. There, in next-to-last place in 2006, lawyers sport 27% trustworthiness, one notch above the bottom-feeding actors, over whom lawyers are able to boast a one percentile advantage.

The recent portrayals of lawyers in mass media are evidence of how low the reputations of lawyers are sinking. Long gone is Perry Mason reassuring the wronged and bringing evildoers to justice.   Last season’s TV series about a lawyer was titled “The Shark,” which pretty much says it all from an image standpoint.  That series has been one-upped by this summer’s arrival of a lawyer drama entitled “Damages,” starring Glenn Close, who will always be remembered as one of our generation’s scariest persona—the man-eating, marriage-dashing, family unfriendly “Fatal Attraction” psycho.  Legal advice, anyone?

Then there are the real-life reports that manage to make these fictional scenarios look reasonable:  the senior partner who throws law books at associates, the criminal defense attorney found naked with an adolescent in the court's conference room, the litigator who admitted to altering documents in a consumer class action, the tax lawyer who bribed IRS officials to accept tax positions, the partner whose language in court was so egregious the head of the firm flew in to apologize. 

Into this combustible scenario comes the question of whether law firms should be able to advertise in mass media, as do other professions, and if so, what they should be able to say. 

The recent back and forth in New York, New Jersey and other states about whether law firms should be allowed to tout their "Super Lawyers" or other commercially recognized stars on their websites, use testimonials from prior or existing clients in their marketing materials, use unidentified actors in their ad campaigns or even send emails that don't clearly identify themselves as "soliciting" are no doubt reflections of the growing role that image marketing is likely to play for lawyers. 

A recent article in the New York Times heralded the arrival of professional-looking canned law firm television commercials that are affordable to "the smaller, more local firms for whom the most important thing is the message to their communities," according to Spot Runner, who is working together with Martindale-Hubbell to market the commercials.  While that approach may benefit a local firm whose clients and potential clients are individuals in the community, as the article notes, it is unlikely to be useful to large corporate firms.  And the unseemly associations with ambulance chasing still prevail.

So, other than mass advertising, how do we burnish our image in this modern era? 

Perhaps in the most old-fashioned of ways:  by building relationships, one at a time.  It does not produce a quick fix or an instant cache.  It takes time-- both immediately and over the long run, so it's not very efficient.  But building individual relationships is effective.

Clients say repeatedly that the quality they most want in their counsel is trustworthiness.  Not just someone who gets the answer right.  Or gets the answer right enough for the price.  But someone who the client can count on to look out for their best interests, provide honest feedback and reliably follow through. 

It's an image worth the investment.

 

Developing a Risk Conscious Firm Culture

Ronda Muir will be making a presentation on managing the people risks that arise in law firms at a conference for Managing Partners in Chicago on Thursday, June 21. Sponsored by ARK Group, the conference, entitled “Developing a Risk Conscious Culture in Your Firm,” explores the relationship and interdependence of ethics, risk management and legal compliance.

What's Morals Got To Do With It?

Should lawyers “do the right thing” in addition to “being right”?  

A favorite cartoon depicts two lawyers at a desk evidently discussing strategy. One lawyer says to the other: “Is it right?… Is it fair?  Get a grip, Carlton—we’re a law firm!”

Integrity

In an interesting study issued recently, the Consortium for Research on Emotional Intelligence found that financial advisors who demonstrated high levels of “moral and emotional competency” nearly doubled the S&P 500 return on their client portfolios in the years 2001 through 2004, delivering an average return of 25%. 

Of the various attributes studied, integrity had the single strongest impact on client returns. “Results showed that Integrity was the key behavioral competency which predicted the most positive returns for clients." 

Integrity was defined as acting consistently with what one says is important, in other words “walking the talk.”  An example was an advisor willing to give up a lucrative client rather than compromise his/her principles, such as ultimately recommending that a client seek advice from another advisor because the advisor could not in good conscience implement a plan believed to put the client at significant financial risk.

Ethics

In the process of updating his 1996 book The Honest Hour: The Ethics of Time-Based Billing by Attorneys, William George Ross determined that lawyers in 2007 are significantly more likely than a decade ago to pad their bills with unnecessary hours or bill two clients for the same time. Almost 55% (up from 40%) of associates and partners surveyed report performing unnecessary work, and 35% (up from 23%) say they bill two clients for the same time. The number of lawyers who believe double billing is ethical also rose from 35% in 1996 to 48%, and more than two-thirds of lawyers say they have specific knowledge of bill-padding by others.   

Morals

In a May 2, 2007 Law.com article entitled “From Moral Partners to a Moral Firm”, Gregory S. Gallopoulos, the managing partner of Jenner & Block, suggests that the integrated enterprise model that many successful law firms are adopting now, in which strategy and vision belong to the entity as a whole rather than to individual partners, risks producing a vacuum in the area of firm morals. 

“Under the entity model, as individual attorneys cede decision-making authority to the firm, including authority for decisions regarding professional responsibility and ethical behavior, they tend to renounce (at least implicitly) personal responsibility for moral decision making. Law firms as entities, however, have no inherent mechanism for replacing personal moral responsibility with institutional moral responsibility. In consequence, morality can fall through the cracks, allowing corruption to ooze into the enterprise. “

Continue Reading...

Raves for Muir Presentation on Risk Management

Ronda Muir, Esq., Senior Consultant at Robin Rolfe Resources, was featured as a speaker at a conference on Risk Management for the Modern Law Firm, sponsored by ARK Group. The conference was held in Chicago on April 17 and 18, 2007. 

Muir's presentation was on the risks that arise in managing a law firm's greatest asset: its people. She pointed out the ways in which lawyers are different from all other professionals, the challenges and risks that those differences pose to management, and how to use those differences to make good lawyers better. 

Participants raved:

  • "Innovative, new information!"
  • "Excellent, new material of real value.  I would love even more detail and time on this topic."
  • "Great presentation!" 
  • "Great speaker!  Knowledgeable and forward thinking."

ARK Group also lauded Muir's participation: "Your involvement was pivotal to the success of the program… and brought a fresh perspective to the agenda."  

Teaching the Business of Law

Temple University’s Beasley School of Law is including a course on law firm management in its curriculum for third–year law students starting this past month.

Called "Legal, Professional and Business Aspects of Law Practice," the class is divided into four sections:  law firm economics, time management, client development, and ethics related to the business of firms.  Some of the topics included are fee structures, accounting, partnership and tax law as related to firms, firm organization, and referrals.

The textbook for the course was written by a professor who teaches a similar course at Pace University. Stephen J. Friedman, dean of Pace University School of Law, and formerly commissioner of the SEC, general counsel of The Equitable and E.F. Hutton, and co-chairman of the corporate department at Debevoise & Plimpton, finds law graduates to be "ill-equipped to be effective beginning lawyers" and wants curriculum at law schools to be "more purposeful, more focused and more integrated." 

And evidently particularly more attuned to the challenges of effective legal practice and good law firm management.

"Resolving Clients' Dilemmas"

Harvard Law School’s goal in its revised curriculum this year is to teach young lawyers how to “resolve client dilemmas.” How exactly is that done successfully in the modern practice of law? By calculating dollars won in the final judgment, for example? By assessing the investment of time and energy versus the payoff? 

Everyone has by now heard of the prevailing sentiment that no one wins in litigation any more. If that statement is even somewhat true, what is the course to resolving a client’s dilemma in a way that will be viewed as successful? 

The mediation industry has arisen almost entirely as a reaction to the mistrust of lawyers and what is perceived as their conflict-escalating processes. Even arbitration is becoming viewed as saddled with some of the time-consuming, rigid aspects of litigation, and in-house counsel are moving towards mediation, or at least including mediation in their bag of tools. Paul Adams, Associate General Counsel at the Gap, finds mediation “a very, very powerful process with a strong emotional component. It’s informal and the plaintiff feels like he’s controlling what’s happening.” He also notes that it allows for more creative resolutions.

Thane Rosenbaum argues in his book The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right (HarperCollins) that what clients want most is an emotional relief--to feel that their position has been understood and acknowledged. "Clients of all stripes walk out of the courtroom saying 'That’s it? I didn’t even get to say what I think?'" Lawyers, he argues, are limited by their legal vision—rather than just channeling their clients’ anger through a legal claim, such as breach of contract, which may not really address the client’s underlying grievance, lawyers should be listening to and acknowledging the hurt, and be able to offer nontraditional ways for that hurt to be addressed. While Rosenbaum’s claim that our current system of justice is morally deficient does not seem to have been challenged, his suggestions as to how to change it have been met with charges of being naive and impractical.

Web.com’s Corporate Counsel Jonathan B. Wilson’s book Out of Balance: Prescriptions for Reforming the American Litigation System takes a less radical approach to reforming how we address our clients’ dilemmas, including advocating for arbitration, mediation and a number of other alternatives.

Thomas Barton, who teaches creative problem solving and preventive law at The Center for Creative Problem Solving at California Western School of Law in San Diego, extols creative legal problem solving not only for the satisfaction it gives the client, but also for the effect it has on the lawyer involved: it feels great to do creative work that really resolves the dilemma. See www.cwsl.edu/cps According to Barton, there are two major steps involved: expanding the context of the problem so that all the dimensions are exposed, and building a larger repertoire for resolution, which includes being open to whatever constitutes “success” in the client’s mind.

Malcolm Gladwell’s book Blink cites research that shows that doctors who are viewed as a valued resource and are able to build a trusted relationship with their patients are not sued –even if they have committed malpractice. While admittedly a subjective standard, shouldn’t lawyers be aiming for that same type of relationship with their clients? The one that makes them “right” no matter what their advice is?