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Logic, Listening and Settling Disputes
Logic can tell us important things about settling disputes. For example:
- That a settlement can’t happen without both sides (or all sides) agreeing.
- That settlement may be difficult without understanding the perspective of the other side(s).
- You can’t understand something without knowing about it. (We are talking logic here.)
But this is about as far as logic can take you. Logic cannot tell you how the other side sees the issues in dispute. More significantly logic cannot tell you how the other side feels about those issues. It is most unwise to assume that you understand that perspective without hearing it from them. (Here is something you can try at home. Try telling your spouse that you understand their perspective completely without listening to them. See how well this works.) Similarly since settlement is a reciprocal process, it is unwise to assume that the other side understands your side of the dispute without you telling them about it.
Listening includes demonstrating that you have heard what has been said. You should be able to repeat back the sense of what you have been told. If you can’t, get them to elaborate, i.e. to repeat themselves, so that you can do so. Take notes if you need to. Then paraphrase fairly what they are saying. Get them to confirm that you have understood what they are saying correctly. When they correct you, similarly confirm that you have understood the correction.
Take your time so that there is a moment when you have fairly put their position, and they can see that you have understood it. Unless and until you have understood and absorbed the other side’s best points, it may be difficult for the other side to listen to your best points.
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Defining Our Terms – Why we call Ourselves “Legal Counsel”
“Trial lawyer”
Most civil disputes in British Columbia do not go to a trial. The fraction of law suits that are resolved by a judgment after trial have in recent years been less than 3%.
There is room for debate whether the small portion of claims that are formally tried is a good thing or a bad thing. But there is no room for debate that the overwhelming majority of cases that are brought are not tried, but are settled.
Any particular lawyer in British Columbia who tried the majority of his or her cases and could thus claim to be a “trial lawyer” would thus be a rare statistical outlier .
The term “trial lawyer” then is not accurate for lawyers who conduct civil disputes in British Columbia.
“Barrister”
Nor is the term barrister accurate in its historical sense. This is a title which we can properly claim. All lawyers qualified in British Columbia are “barristers and solicitors.” We are so described in the formal record of lawyers qualified to practice law – “the barristers and solicitors roll” which is kept by the Law Society.
In England and Wales, which is the historical source of our use of the term barrister, barristers are a separate legal profession from solicitors and their main role is limited to advocacy in court, and not even the necessary gathering and organization of evidence for court, which is the one of the functions of solicitors there. For a fuller discussion see: http://en.wikipedia.org/wiki/Barrister#Differences
Thus the term “barrister” even in the different sense it has been used in Canada speaks to a function of representation in court.
“Litigation Counsel”
The term “litigation lawyer” is also implicitly tied to representation of clients in law suits. But many claims are resolved without litigation – by negotiation, mediation or arbitration.
“Legal Counsel”
Lawyers qualified to practice law in British Columbia must be members of the Law Society of British Columbia. The functions that are restricted to members of the Law Society [from the definition of "practice of law", section 1 (1)] include:
a) appearing as counsel or advocate,
b) …
c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
d) …
e) giving legal advice;
These core functions of a lawyer engaged to act in a civil dispute are well-captured in the term “legal counsel.” They are an advisory function to the client and a representative function in dealing with other parties. The term does not refer only to the court process.
Filed in: Litigation, Resources
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Analyzing Issues in Disputes
I find it useful to break down the issues in disputes into:
- factual and evidentiary issues – what happened and how can that be shown
- legal issues – what does the law say about situations like this
- financial issues – what are the costs and benefits of various options for dealing with the matters in dispute
- tactical issues – issues of timing, the sequence of dealing with issues and procedural choices for resolving the dispute
- emotional issues – how the parties feel about the dispute
Lawyers in dealing with disputes have traditionally focused on legal issues and they have focused on the courts’ litigation procedures. But now, in a time when almost all cases outside court lawyers must also deal with this larger range of issues.
Of these different kinds of issues, the emotional issues are often the most important. Lawyers see many cases when the facts, the law, finances, and their tactical considerations all very much against them, but they will not settle. Anger or some other compelling emotion governs what they will do, and that emotion must be given at least as much attention as the other issues if settlement is to be achieved.
Lawyers and others often make the mistake of believing that settlement is, or at least should be, governed by the same rules of evidence, relevance and logic as the legal issues that are the substance of legal analysis and of the court process for adjudicating disputes.
But these different sorts of issues have their own dynamics and considerations, especially in the context of negotiations leading to settlement. Lawyers need to be alive to these differences and to expand the range of approaches that they bring to bring to the table.
For there is no doubt that the reality is that parties in dispute are affected by all of these sorts of issues and the skill of counsel is often in balancing the particular balance of trade-offs among these factors in coming to a settlement which best meets their clients’ interests.
Filed in: Litigation, Resources
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“Access to Justice” – a Misleading Euphemism
Everyone expresses concern that the high costs of legal services necessary to conduct a dispute in the courts of Canada make it practically impossible for many people to effectively seek redress in court. Usually the problem is not identified in this plain spoken way. Usually the problem is discussed euphemistically as one of “access to justice.”
But the problem is not one of “access.” We have a court system that is admirably open, honest, and principled in how it deals with disputes. In very many respects we are fortunate in Canada with the quality of our justice system. But it has a serious problem. The problem is how to pay for the legal representation that is necessary to present a case in court.
For large businesses and government this is not a serious problem. Rather it is an unacknowledged feature of the system. For them, an expensive justice system works well. They can bear the costs of litigation. At the same time people of average means often cannot effectively bring claims against them. In the case of businesses, when they are sued, they can pass along those costs to customers, or call on insurance, and they can tax deduct necessary legal expenses. In the case of government, the costs can simply be passed along to taxpayers.
It is not a secret that inequality of economic power can affect the outcome of a dispute. This gives rise to a problem of “justice”, plain and simple.
Many claims for redress cannot be effectively brought. Many claims must be compromised on unfavourable terms because of the disadvantages citizens face in undertaking litigation against well-funded defendants.
This “legal injustice” is but an aspect of social or economic injustice. We are accustomed to understanding that social and economic injustice does not get addressed effectively without political pressure for change.
We recognize in our democracy, that political issues are everyone’s legitimate concern. We must extend that recognition to issues of legal injustice. Reforms to our court process are not just the business of lawyers and judges, who after all are not themselves, the ones adversely affected by this problem.
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