At the moment, I’m working on a paper about professionalism in the law, tying it closely to lawyers’ mandate to serve the best interests of others, including clients and the public. I thought you might be interested in this brief excerpt; I’d certainly be interested in your thoughts about it in return:
There is a fundamental disconnect between how lawyers view the justice system and how clients view it. Lawyers are trained, from the first day of law school, to get the right result, no matter what. We are steeped in the idea that justice must always be done and must always be seen to be done, whatever the costs.
The underlying theory of the common-law adversarial system reflects this: two learned advocates, zealously advancing their clients’ cause, will produce for an independent judge the means by which the correct result can be identified and proclaimed. The costs involved in reaching this result, in terms of time, money and impact on people’s lives, are, from the lawyer’s point of view, of secondary importance to the overarching goal of the system: justice must be done.
To see an illustration of this philosophy, consider the discovery process, a major contributor to the length and cost of trials. (Needed reforms to the process were endorsed by former Ontario Associate Chief Justice of Ontario Coulter Osborne in his recent civil justice report.)
Lawyers are trained to believe that anything that can be construed as potentially evidentiary should be made available for them to sift through. Inclined by both nature and training to be thorough to the point of perfectionism, lawyers want access to every stone for the purpose of turning it over. Similarly inclined towards risk aversion, lawyers fear missing any relevant point, no matter how small, and are accordingly driven to ensure that every box has been checked. The result is a massive overabundance of attention to the trees and too little regard for the forest.
Clients, if asked, generally relate a view of the justice system that is markedly different. Some clients, it is true, have an obsession with vindication and show a dogged determination to see every dispute through to its bitter end. But most clients, when confronted with a legal problem or challenge, want only one thing: the problem to go away, as quickly and inexpensively as possible. They want to get on with their lives, their businesses, their personal recoveries, or their careers. They want the legal obstructions to that progress to be removed.
Most clients don’t want to wait longer or pay extra for perfectionism, or style, or the right answer above all else. In fact, many are open to receiving less than they might be due in exchange for expedient resolution. Good enough is all that many clients want. Or, as one in-house lawyer once put it, the outside law firm gave her a splendid dining room set with all the best features. But she had asked only for a chair.
In this respect, mediation has to be considered one of the real triumphs of public interest in the law over the last few decades: fast, fair, hands-on dispute resolution. Is it a coincidence that this solution, which works so well for so many people, functions by greatly reducing the role of lawyers and courts in the process? Is it happenstance that virtually the only clients who see a matter all the way through the courts these days are either rich or irrational, or both?
For all the strides that mediation or even arbitration has made, lawyers still tend to treat the courts as the default setting for resolving disputes; the A in ADR, which stands for alternative, is testament to lawyers’ perspective in this regard. We have made process king: we are conditioned to follow the traditional trail towards dispute resolution, with all the detail and effort that requires. And by a happy (for lawyers) coincidence, the billable hour system means that the longer and more complicated the process, the more income lawyers generate.
How is it that the court system remains so closely aligned with our preferences and interests and so diametrically opposed to what clients want and need? Whose interests does this approach serve?