Commentary: Lawyer’s frank, detached judgment best serves client

By Marc E. Gustafson

A mediator-friend recently texted me at 11:06 p.m. that he had just wrapped up a mediation. This particular effort could have been much shorter “with just a couple very simple acts of reasonableness,” he said. Many lawyers, and probably most litigants, would be surprised by how often this occurs. I think this is in part because of the widespread misapprehension of the role of lawyers and how we go about our business.

In my friend’s mediation, “The lawyers were great.” This has almost universally been my experience as a mediator, too. It was the litigants that had my friend throwing his arms up and asking, “What is the point of [your last move]?” His takeaway: One of the most important jobs of a mediator, which sounds obvious but is harder than it should be, is talking clients out of doing dumb things.

This is a great starting point. I believe lawyers are at their best when they work hard to ascertain the unvarnished facts; objectively assess a client’s situation; speak frankly to clients and tell hard truths; and prevent bad decisions.

Why is it harder than it should be?!

We’ve all heard it before; “You’re a lawyer; you must love to argue” or “You’re a lawyer; aren’t you just going to use the facts to fit your argument?” From the outside, our profession, particularly litigation, is viewed as combative. Facts are obscured from direct view, positions are unnecessarily staked out, emotions are seen as convenient tools of manipulation, and pain is often seen as a spoil of the process.

While these things are frequently present in litigation, they generally don’t — and rightfully shouldn’t — play as prominent a role as the public perceives or maybe even wants. When a reasonable view of the facts is shared by both sides, who objectively assess those facts and the law, and lawyers communicate squarely with their clients about reasonable outcomes of disputes, our clients, and maybe even our profession, will be best served.

Extracting the truth

My wife hates it when, during the middle of watching something on television, I point out someone not telling the truth. I try to make it better by telling her that’s what I do for a living. In my line of work, typically trade secret and restrictive covenant cases, there is a particular urgency in ascertaining the truth; the clock on filing or responding to a temporary restraining order runs quickly and knowing the facts (good or bad) weighs heavily on the outcome.

I often find myself imploring clients not to try to sell me on their version of the facts or to think hard about what is likely to come out under even modest scrutiny. I tell them the truth is important no matter the audience, whether it be opposing counsel in the event we’re looking to settle, a judge ruling on a preliminary motion, or a mediator whose trust we are trying to garner so that she or he might be motivated to work even harder toward our desired outcome.

Being objective

Even lawyers can get caught up in the fight. I wish I had a bitcoin for every time I heard a lawyer tell or try to show me that he was “zealously advocating” for his client. But we have all seen instances where this strategy fails miserably.

Of course, there is nothing wrong with fighting hard for our clients. But lawyers I have seen in court or during mediation sometimes appear to lose sight of Rule 2.1 of the North Carolina Rules of Professional Conduct, which requires us to “exercise independent, professional judgment and render candid advice.” The comments provide an even better understanding of our duties: “A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.”

Falling into figurative bed with our clients, for whatever reason, can lead to a loss of the independence and professional judgment we have been admonished and trained to protect. As the comments to Rule 2.1 and at least one country music song make clear, the right thing’s always the hardest thing to do.

Speaking frankly

In past commentaries, I have encouraged lawyers to speak candidly to clients about all the factors that may be relevant to their situation (see Rule 2.1 again) at the outset of the engagement. This is particularly valuable during mediation.

As mediators are quick to remark, mediation is the one day to cast aside all other distractions and focus on a resolution. It has been my experience that settling a case in mediation is made more likely by this occurring as early in the process as possible.

One nice thing about mediation is having someone else there, the mediator, who can help with this task. When I mediate, lawyers might be frustrated that I don’t instantly come out and tell the other side (or even their client) exactly how I feel. That’s in part because that is the role of party counsel. It’s also because I am trying to develop a connection with the parties during a short period so that I can, if necessary, speak fully and frankly with them.

Preventing bad decisions

Litigants enter lawsuits, and even mediation, with a host of objectives. Many are good, but some are bad. Getting past the motivations, focusing on resolution, and not getting lost in the details can be the hardest and most time-consuming parts of mediation. But they are often necessary.

As much as every mediation eventually gravitates toward an exchange of financial terms, it is often emotions that dictate a big part of the day. Some people don’t want to be there. Others are only there because a judge ordered them to attend. In the end, I believe everyone wants resolution, if for no other reason than it creates certainty, and humans love certainty.

Helping litigants to appreciate that might be the best thing lawyers, with the help of a mediator, can do. Counterintuitively, however, the longer the mediation day goes, the harder this might become. Patience wears thin, petty interests reveal themselves, and the desire for control creeps in. This is when lawyers should, and sometimes mediators must, step in to prevent self-inflicted wounds.

Sometimes that’s positive encouragement, sometimes it’s through exasperation, sometimes it’s just a good old reset. But this is where lawyers and mediators can prove their worth. We can sift through everything going on to get to a place where litigants can move past something that has probably consumed more time, attention, and stress than anyone is willing to let on.

If lawyers can do these things, over time, I think we will not just resolve more disputes, but we will also redefine the perception of our profession by the public, and maybe make our jobs a little bit easier. Maybe.

Marc E. Gustafson focuses his practice at Bell, Davis & Pitt on litigation and employment law and is a certified mediator.