There is an irony in what a lawyer should really do to get the best results for his or her client.
We all know that lawyers should strive to seek justice, so to speak, for their clients. Even in disputes about contract, property, or money. Every client deserves to seek justice, be it the "little guy" or a giant corporation. Everyone, including lawyers, know that instinctively because it is common sense.
But I believe that to really seek justice for a client, a lawyer needs to treat the other side, and their story, with respect, fairness and empathy. Only then can a lawyer truly serve his or her client's best interests. That is the irony.
Let us go back to first principles. Black's Law Dictionary answers the question of 'what is justice' as follows:
What is justice? Protecting rights and punishing wrongs using fairness. It is possible to have unjust laws, even with fair and proper administration of the law of the land as a way for all legal systems to uphold this ideal.
The meaning of justice in this definition has three components, which are:
- Protecting rights, or punishing wrongs, as the case may be;
- Doing that with fairness;
- Even when the laws are unjust, administering those laws in a way that is fair and proper.
Technically speaking, a party cannot get more than what justice allows. Which is to protect rights, or punish wrongs, in a fair way. And even when the law is unfair, to have the law applied and administered fairly.
Assuming justice prevails most of the time, and that laws are most of the time applied and administered fairly, a lawyer cannot achieve for his or her client a result that is better than what justice allows. Justice is the limit that the law provides to a party. It would be unreasonable for a lawyer to want to achieve something that the law, applied reasonably and fairly, does not allow for his or her client. If lawyers and their clients have reasonable expectations (which is often not the case, unfortunately), real justice is what all lawyers should strive to achieve for their clients. It is much more efficient to seek justice for a client then to strive for a result that is unreasonable or untenable at law.
Justice has a fairness component. Fairness is a tool. It means taking both sides' interests into account. The Oxford Dictionary defines 'fairness' as "the quality of treating people equally or in a way that is reasonable".
It is not enough for a lawyer to focus on merely protecting the client's rights, or punishing the other side's wrongs. In order to serve the client's best interests to the extent that the law permits - protecting the client's rights or punishing the other side's wrongs must be done using fairness.
The objective of all lawyers is, quite properly, to defend their clients' interests and seek the maximum rights or remedies to which they may be legally entitled. But our means toward that end - how we get there - makes a big difference in whether we really achieve that goal.
Think of the biblical narrative of the Judgment of Solomon. To test who was speaking the truth, King Solomon declared that supposedly the only fair solution was to split the baby into two. The boy's true mother cried out: "Oh, my lord, give her the living child". But the other woman said: "It shall be neither mine nor thine; divide it". One had empathy and a genuine understanding of fairness (because it was her child, of course). The other did not.
It is only by really understanding and feeling the story of the other side that a lawyer can frame the best way to advance his or her client's cause. To truly understand the story of the other side, a lawyer has to treat it equally. Otherwise, a lawyer does not stand a chance to really understand what motivated that person to do or not do something, or the values that are important to that person, and to craft an effective argument.
Lawyers are taught in law schools that our North American adversarial legal system (as opposed to Europe's inquisitorial legal system) requires that, within legal boundaries, each side maximize his or her side' position, while letting the judge or trier of fact decide who wins. Many lawyers feel that expressing empathy for the other side, or treating the other side's case with fairness, is at odds with a lawyer's duty to maximize his or her client's best interests in our adversarial legal system. Lawyers think they would be perceived as too "soft" or "agreeable" and not aggressive enough in representing their clients. There is a strong pressure on lawyers to win. Many lawyers think they should be, and be perceived as, "attack dogs" to win a case. They think it is good for business.
Maybe that's conventional wisdom. But I am here to tell you that it does not work and does not win cases. I have been practicing franchise litigation for over fifteen years in Toronto, some in bitter fights between franchisors and franchisees, on both sides of the dispute (in different cases of courses). I have been there, done that, and I have failed terribly, time and time again. It is not pleasant.
It is not good for the practice of law. And it is not good for business. This approach only works to impress misinformed or unreasonable clients. Even then, it is only a short-term strategy. A badly misinformed one.
But I have learned from my mistakes. Lawyers have a duty to objectively inform their clients about the applicable law. And, I argue, how the concept of fairness would likely be applied in the case. Even more so, you can catch more flies with honey than with vinegar. Getting the best result for a client is not in conflict with fairness and empathy for the other side. And that is not in conflict with our adversarial system. Showing genuine empathy or treating the other side with fairness does not diminish from a lawyer's representation of his or her client in a zealous manner, to the full extent allowed.
No matter how forceful an argument a lawyer makes, a competent judge, jury or arbitrator will try to see the other side, too. That is their job. And that is human nature. So why not help in that process, to see the other side? By doing that, a lawyer helps one's own case.
It is not easy. Perhaps easier said than done. I am trying to practice what I preach. It is a constant struggle. Clients may question your commitment to their case. But lawyers have to explain what they are doing and inform their clients.
Great advocates and orators have known for centuries that to convince other humans as between two competing theories or stories, one must have the winning story. They have always known that what makes a winning story is being more favorable and persuasive than the other side's story. And they have always known that the winning story has to take into account all the weaknesses and strengths of both sides' stories. Only then does the story stand a chance to prevail over the other side's story.
All lawyers should strive to practice law this way. It would better serve clients, and therefore society; and may I say, humanity. Because genuinely maximizing one's case in our adversarial system would make for a more efficient marketplace. Do it with empathy and do it with fairness.