Adopt an Attitude
This book combines two approaches to lawyers: the business attitude and the autocratic attitude. I favor the pure business attitude but personalities usually enter the field, and that's where the autocratic attitude can come into play.
The Business Attitude
A pure business attitude or as close as possible is the right method for most customers. It focuses on results, and avoids personalities. This is a world view, not an opinion; it's not open to discussion by the lawyer. Here is the frame of mind:
- I'm buying a service which provides the following results: (insert laundry list). Obviously an experienced customer will be more specific, but everyone has some idea of what they want.
- I need to know what results can be expected, how much it will cost, and when it can be done. This information is necessary to my decision. Without this information I can't make any decision. If I can't make a decision I'll have to let this job drop. (And then you will not be hired.)
- If the value (to me) of the results is greater than the cost, and the cost is within my budget, I'll buy.
- If the value of the results is less than the cost, or the cost exceeds my budget, I won't buy.
- It's a business decision, you understand. (Actually, the lawyer may not understand, but ignore that. The important thing is that he's met businesslike customers before. This won't be a new experience.)
This attitude is essentially the practice of PROJECT MANAGEMENT (tk). You ignore any negative aspects of the lawyer's personality. Once beyond basic manners, there is no reality but results and cost; results and cost are the only meaning in the universe. In the end all conversations return to results and cost.
Since results and cost are the only realities, it doesn't matter whether the lawyer thinks you are "right," or thinks you're acting rationally. If he starts debating, you want to determine how the point relates to results and cost. If he wanders too far, you have to reintroduce your original purpose. (Some lawyers claim debating is a means of examining problems ... I've heard many debates, with many ideas laid in the grave, but I've rarely seen a idea emerge in good health.)
Like a terrier digging for a bone, there is only one goal yours and you ignore all distractions.
The business attitude is also useful if you wrap up the job a lot sooner than the lawyer expected. You tell him you'll be "giving up this approach," that you "don't feel the results will justify the time spent." Suspecting they are being fired, most lawyers will try to argue you out of your decision. Go past this argument with the same steady business attitude. You're offering them a chance to save face; most will take the opportunity. Firing is much more relaxed when it stays in the realm of ideas and results. Just as final, though.
The Autocratic Attitude
Outwardly focuses on results (and the results are important). At a lower level it focuses on personalities. Power dynamics. Pecking orders. Big monkey and little monkey.
I met Bill Friedman at a barbecue. The host heading off to turn the roast said, "Bill knows more than I do. He's been in charge of a bunch of federal regulatory lawyers for years." Bill had the look of a man who knows his mind, so I went right to the point:
"Pleased to meet you. Do you happen to have a coherent ten-point theory on controlling lawyers?"
"Absolutely!" he answered, and here it is (in fact, he only gave me five points, but they're good ones.):
The Bill Friedman Method
Be autocratic. (autocracy, n. 1. unlimited authority over others, invested in a single person)
[Note: Bill later mentioned that he didn't mean the customer should be nasty. Agreed: most people with real authority have fairly good manners. Autocrats don't need to abuse people; they're above that.]
Communicate the following ideas to the lawyer:
- You're a hired advisor.
- Your purpose is to advance what I believe or need.
- If you can't do that, you can't serve me.
It's OK to play golf with them, but only at your own club.
[I assume that Bill also meant "... and not too often."]
Get on top and never let them up.
Bill added that like military people lawyers live by rigid social rules, and people accustomed to such rules are prepared to take orders.
The autocratic method works best for those who know what they want and think they have a divine right to command. Bill Friedman was an Army officer for some 20 years, a pretty good way to develop the attitude. American robber baron J.P.Morgan must have had the same attitude, judging by his comment, "I pay lawyers to do what I tell them, not to tell me what I can't do." But if you don't have it, stick with the business approach.
The Democratic Attitude
You won't find modern theories of management in this book. There is no participative management, there is no profit sharing, and there are no quality circles. With good reason: lawyers are not regular employees, for whom you're responsible. They are temporary employees who earn good money, better than most of their customers, and who usually reckon they're more important than the customers.
Responsibility aside, democracy doesn't work. Lawyers are ferociously class-conscious. You can get on top and stay there, with the autocratic attitude, or you can refuse to play games, with the business attitude. That's about it.
Don't show the lawyer a "Whatever you say" attitude. Focus on the specific suggestions, and make the decision yourself. You don't want him to start feeling too free with advice. Facts first, then advice if you ask for it. Then you decide.
Sometimes you don't notice until about the third suggestion that advice is being rammed down your throat. It's not too late to clarify your attitude, either pointedly, or by telling him that you'll have to think about it. If you decide to take the advice, call back and tell him to go ahead. Make him wait.
Immature? A waste of valuable time? Perhaps, but it sets the ground rules; those who know enough to offer advice should know enough to be tactful.
Some types of advice should never be allowed: don't let a lawyer advise you on your life or personal affairs. That isn't what you're paying for. You want to know what your legal situation is, and then have specific jobs carried out.
You should be no more interested in a lawyer's personal advice than a new plumber's advice on bathroom decor. If the plumber gets to know you, and you come to respect the plumber's artistic sense, then maybe you'd ask which type of faucet handles would look best on the shower.
Be Rational But Not Transparent
Be passably rational, so a lawyer can tell when you're serious about something. You don't want to call from jail and have him think you're just being hysterical again.
But don't feel obliged to explain your thinking. You're the boss; you don't have to. Unless there's a good rapport, you want the lawyer to know the goal, and that's all you want.
The more sensitive customers will want share their hopes and fears. This is usually a mistake. To explain your reasoning is usually to be ignored, and at worst, to wind up debating with the lawyer. Never debate with a lawyer. There's no way to win; when aroused to argument, a lawyer will always want the last say, or the last meaningful glance.
Charging in aggressively (waving a five-page contract from the back of a consumer advocate book) will accomplish two things: it will annoy the lawyer and tell him you're naive.
See CONTRACTS (tk).
Premature familiarity breeds contempt.
You don't have to be pompous or unpleasant. Just don't be personal right away.
The time to accept familiarity is after you get respect whether that takes one minute or five years. It depends on you and the lawyer.
There can be exceptions to the rule. If your situation is really unfortunate, familiarity may simply mean the lawyer is sympathetic.
Fears of Customers
It's common enough for customers to be intimidated by their lawyer. The best solution is to never hire a lawyer who intimidates you, but perhaps you were in a hurry. If you're stuck with an overbearing lawyer, try this:
Write out what you want before each conversation. Think of it as a shopping list and a script. When you meet, go down the list point by point. Put a check mark next to each one.
DON'T DEBATE. If he starts giving orders, write them down. If the orders don't suit your plans, you can always make a paper airplane out of the sheet of paper. Once he's finished that, then say "OK, and now I have a couple more points to clear up. You mentioned earlier ..." This may drive him crazy, but that's fine it means the list has taken charge of the conference.
If the lawyer cuts you off, you may have to let him go before the job gets done. If the lawyer snarls at you well, customers with money and experience have some standard responses:
1. Stand up, say "I'll write you a letter," and walk out without a further word.
2. Stand up, say "Send me the bill," and walk out.
3. Run all over the lawyer.
The first response is perfectly good style. I would never use number two; it's a great line, but paying off a useless employee in full is a luxury I can't afford.
Number 1 is best for most customers. Of course, you now have to write a letter. Read OUTRAGEOUS BILLS (tk) and GETTING A LAWYER BACK ON TRACK (tk). If you've walked out it's probably too late to get him back on track, but the chapter will give you more information to write the letter.
Lies By Customers
"We have become so democratic in our habits of thought that we are convinced
that truth is determined through a plebiscite of facts." Erich Heller
In the course of practicing law, lawyers expect their customers to lie. That's the way you should see it. Naturally some lawyers hear more lies than others. (A lawyer who does nothing but write wills or contracts may not hear any at all; the customers have little reason to lie until the disagreements surface.)
But despite their training in advocacy, most lawyers want to believe their customers. So they see the whole thing quite differently ...
Visualize a 24-year-old lawyer interviewing a hardened criminal. The criminal tells his story. The young lawyer writes on a legal pad. The criminal finishes; the lawyer stops writing. The lawyer now looks over his pad, stares through the pad, imagining the trial. This is not a winnable case, he realizes ... I need more information ... and begins questioning the criminal on areas of inconsistency. The criminal answers. The lawyer, naturally being more intelligent and articulate, asks pointed questions that clarify the facts ("You mean ..."). Remember, the prosecutor will be doing the same thing ... Another page of notes, and the defense has taken shape.
This is a customer and lawyer collaborating creating a story designed to bore the judge, stump the prosecutor, and satisfy the jury.
What the lawyer saw was the exercise of his legal skills: determining the facts and weaving them into a coherent, integrated defense. The prosecution will prosecute, the defense will defend, and in this best of all legal systems, the truth will come out in court.
The criminal and the lawyer are in basic agreement: A tight story equals a true story.
TEN YEARS LATER ...
Visualize a 34-year-old lawyer interviewing a hardened criminal. The lawyer sets the tone of the interview, because clients don't always know what's important to a case. He asks the questions, and writes on a legal pad, as another part of his mind sees the courtroom. When the client rambles or provides irrelevant information, he cuts him off. He clarifies points when necessary, and asks the client to repeat them so there is no misunderstanding ("... let me understand this ..." he says ... ). At the end of the interview he sums up the case, gives the client a hard stare, and asks if there is anything else he needs to know, or "Is there anything else you need to tell me?"
This is an experienced criminal lawyer mapping out a customer's defense. He assembled the defense; at the same time he let the client know when to keep his mouth shut, coached him on the right answers, tested him to see if he could remember his lines in court, and asked if there were any nasty surprises that could blow them both out of the water. These latter techniques are part of what is known as "witness preparation."
With ten years of experience, and the right case, this could be a story that will leave the judge admiring, the prosecutor humiliated, and the jury sobbing.
What the lawyer saw was a case. As to whether it is right, that was established a long time ago, in law school: A tight story equals a true story.
(Criminal law is the most extreme example, but the pattern is the same for other types of lawyers.)
Telling A Lawyer the Whole Truth
Spitting out the whole truth may limit a lawyer's options. According to their professional ethics, lawyers are supposed to discourage clients from lying. The rules get more specific where courtroom perjury is concerned.
The vast majority of lawyers fall into one of two groups: those who would prefer to believe their customers, and those who don't care. The two groups have a common agenda, though: they don't actually want to hear the confession. A lawyer will be awfully reluctant to put a liar on the stand even a superb liar. It's a fairly bold lawyer who'll say "Forget that happened," or "Shut up and say what I tell you to."
If the case isn't likely to reach the courtroom, a lawyer has more flexibility but he still has to consider what might happen ten years from now. Almost anything could theoretically come back to haunt him.
Of course, everyone is "entitled to a spirited defense." And in fact, the legal defense may be a better bet than a factual defense.
There is a third group of lawyers cynics take note who actually want their customers to tell the truth at all times; for them the legal system = justice = the customer's best interests. However, most lawyers see themselves as "advocate" first, and "officer of the court" a distant second.
If the job is unlikely to end in court, a lawyer would just as soon not listen to a load of rubbish.
Deceiving A Lawyer
Some customers conclude that they have to give their lawyer the big lie that the gap between the truth and the law is so wide that no lawyer could build a good case. Or in a business deal they may be using the lawyer to manipulate the competition. Other customers are simply naive, especially in civil cases, where the inexperienced sometimes believe the blue ribbon goes to whoever tells a better whopper. It's as though there were no witnesses, no contracts, no written records, no signatures, and no reality.
For whatever reason, these customers don't give the lawyer any discreet clues, like "It's a good thing I have a solid alibi. If I didn't, I'll bet that would really hurt the case, wouldn't it?" (Actually, that's not too discreet.)
This modus operandi moves into what all lawyers consider a lie something that can explode in their faces, and make them look stupid. Lawyers, far more than the average human, hate to look stupid.
Customers who string a lawyer along sometimes assume the worst that can happen is the lawyer will be angry. Wrong. If a lawyer finds out before the job is finished, he may slack off or try to dump the customer (at a critical moment). He may also call up the opposition lawyer (who might be the prosecutor) and try to cut any lousy deal at all which he will then try to sell to his customer as a good deal. (If he goes this far, revenge is probably coming into play.)
When the Opposition Is Lying
When the opposition is the police, a lawyer should be able to accept the idea that they are lying.
Customers in civil cases sometimes have occasion to wonder whether their lawyer's head is screwed on tight when he tells them that the opposition couldn't be lying, because "... their lawyer is a fine attorney who wouldn't stand for that." And this is ten minutes after he has finished his own customer's coaching session.
That isn't necessarily a time for panic. A lawyer's instinct is still to ferret out inconsistencies and weaknesses. And if a tight story is a true story, a loose story is an untrue story. As long as he doesn't show any other signs of insanity, just keep a close eye on him.
When the Opposition is Lying Monstrously
Big lies can be a serious challenge to a lawyer's skills. They have no relation to reality, so it can be hard to contradict them with mere facts. They are usually uncomplicated, which means they are usually consistent (tight).
If the biggest lie of the decade is coming your way, don't count on your lawyer to handle it. Step back and look at the big picture. Be prepared to go dig up the evidence yourself.
The Limits of Lying
Don't get too excited with the possibilities of lying. It's not the only element of a case. There is also interpretation of the law. And of course, there is the opposition; they may have unsinkable facts.
To Table of Contents Ordering a hard copy of Dancing with Lawyers.