As we bid goodbye to 2009 and contemplate the second decade of the 21st century, one can’t help but wonder what changes to the legal profession the 2010s will bring.
One of us recently attended a CLE in Pierce County presented by Dr. Julie Macfarlane based on her 2008 book, The New Lawyer: How Settlement is Transforming the Practice of Law. The book, and her research studies on which it is based, are a thought-provoking look at the widespread changes taking place in lawyers, law firms, clients and the legal system itself.
Dr. Macfarlane’s research is clear: As a practical matter, our old system of lawyers as “rights warriors” and clients as their passive sponsoring patrons has largely vanished. The courthouse as primary battleground for legal disputes has also joined the disappearing act.
The new paradigm is one of lawyers as efficient problem-solvers; clients as their equal (and active) partners; and a criminal legal system that is increasingly vested with a broader view of “justice.” For attorneys, this involves learning new tricks built on a foundation of existing skills.
New Decade Lawyers will be grappling with many changes in thinking, among which are:
ADR or DR — Put another way: What is ADR an alternative to?
The legal system in the past has been defined as the litigation model, with any other path to resolution considered an “alternative” to trial. Today, the legal system is increasingly a rich and diverse menu of options, with lawyers and their clients at its core.
Gone are the days of “one size fits all” lawyering and processes. The future will include diverse styles and an expanded legal tool box.
Restorative Justice: Mending, rather than discarding, what is broken.
Lawyers and judges in the criminal justice system are also facing profound changes in thinking. Restorative justice is a paradigm in which criminal justice and criminal sentencing are a collaboration carried out by the community, the victim and the offender.1
There is a growth in providing defendants rehabilitation and treatment program alternatives. Non-violence and conflict resolution skills trainings are being taught to those who are incarcerated. This is a broader view of justice, where all the stakeholders are involved in the solution.
Who’s in charge? Client and attorney in partnership.
Lawyers who have been in practice for awhile may not be aware that law students today are being taught new lessons concerning the role of lawyers and their relationship with their clients. These “new-fangled” concepts include:
- Clients are autonomous owners of their problems;
- Clients are generally in a better position than lawyers to assess the practical consequences of various resolutions and to determine what risks are worth taking; and
- Clients want to participate and are capable of participating in the process and in making important decisions.2
Issue spotting and legal solutions are but two elements of advocacy. Authentic client solutions require more. New Decade Lawyers can expand the pie of representation by seeking out non-legal as well as legal solutions. For example, in a workplace dispute, in addition to money damages, part of the solution might involve education, apology or communication skill building.
What do all these changes mean to lawyers in say, 2020? For one thing, according to Macfarlane, more change is coming.
I want to suggest that the profession get ready for the pace of change to speed up. What has changed already will not change back. And, there is much more change on the horizon ...3
In a November interview with the authors of this article, Macfarlane added an emphatic postscript. “Since the book was written, there has been an incredible explosion of self-represented litigants in civil and criminal cases,” said Macfarlane.
“The economy has tanked. There is a sudden realization that the economic basis of [traditional] law practice is starting to crumble, and the economy has added an urgency to this phenomenon. If it wants to survive, the legal profession will be rebranding itself as a service that can actually enhance people’s outcome in an expedient and pragmatic way.”
Lawyers in 2020 will be more flexible, creative and strategically effective “on the ground” in resolving clients’ legal troubles. The focus of legal professionals will shift from “picking up the pieces” to skillful prevention. New Decade Lawyers will be more highly skilled and trained in “esoteric” subjects like the neuropsychology of conflict, emotional intelligence and human systems theory. Lawyers will morph from legal dispute technicians to human conflict resolution experts.
The legal system will increasingly expand its borders to incorporate creative dispute resolution processes where judges, disputants and criminals are viewed much differently than we view them now. All in all, the next 10 years promise to be a time of exciting growth in the expansion of the legal universe. See you in 2020!
Don P. Desonier is a collaborative family law attorney, legal coach and family mediator. He is a founder and leading practitioner of collaborative law in Washington. Desonier is an adjunct professor of law at SU Law School, and speaks, writes and trains extensively on collaborative practice. He is immediate past president of King County Collaborative Law. Desonier can be reached via the web at http://www.desoniermediation.com.
Holly M. Hohlbein pioneered the use of interdisciplinary teams in collaborative divorce in Washington. She is an author and trainer, and leader of various collaborative organizations, including founding co-chair of the KCBA Collaborative Law Section. Hohlbein is the vice president/president-elect of Collaborative Professionals of Washington. She can be reached via the web at http://www.hhattorney.com.
1 Dispute Resolution and Lawyers, 3rd Edition, Leonard L. Riskin, et al. (2005 West Publishing – quoting an article by Susan Daicoff), p. 884.
2 Lawyers as Counselors: A Client Centered Approach, 2nd Edition; David A. Binder, et al (2004, West Publishing), pp. 4 – 8. See also Jordan Fulong: ‘We Don’t Run This Show Anymore,” where he says: “The single biggest challenge facing lawyers today is dealing with loss of control. . . . Clients, especially the corporate and institutional kind, are stronger and more sophisticated than they’ve ever been, while even consumer clients are walking into lawyers’ offices armed with information obtained free from Google Esq. They’re confident, they’re demanding, and they expect full access to continuous information about their matter and its cost. The day of the dependent client is ending.” ABA Journal: “Legal Rebels Remaking the Legal Profession,” http://www.legalrebels.com/posts/jordon_furlong_we_dont_run_this_show_anymore/
3 The New Lawyer (2008 UBC Press), p. 243.
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