Nine rules to work by

by David J Bilinsky

How can people have no feelings?
How can they ignore their friends?
Easy to be proud, Easy to say no.
Especially people who care about strangers,
who care about evil and social injustice…
Easy to be hard…

Words by James Rado and Gerome Ragni
Music by Galt MacDermot

Let us take a moment to reflect on a few of the criticisms directed towards the legal profession today. Two of the more common ones I hear are that litigation takes too long and is too expensive. Others are that ordinary citizens find the legal system to be confusing, arcane and at times, capable of absurd decisions that have little to do with real life.

There is no doubt that the legal profession is steeped in tradition, in part for good and valid reasons. However, it is also a factor of life that if a system stops being responsive, if it is deemed to be losing its relevance, then other means will be found to circumvent the system to simply get the job done.

What, if anything, does this have to do with practice management, you ask? Good question. Good practice management should result in cases being dealt with in a timely fashion, in a judicially satisfying manner and at a reasonable cost. What factors within our control affect this?

Stewart Levine, a lawyer, mediator and consultant, has just written a book exploring the issue of conflict resolution within the adversarial model. He has been a partner in two law firms and the Deputy Attorney General for the State of New Jersey. His book has received accolades from Steven Covey and others. The thesis of “Getting to Resolution–Turning Conflict into Collaboration” (Berrett-Koehler Publishers Inc., 415-288-0260) is that the adversarial model in its present form does not afford parties in conflict the opportunity to work collaboratively towards a solution. It is a win-lose model as opposed to a win-win model. Stewart poses a resolution model as opposed to a litigation model for resolving conflicts.

The challenge posed by Stewart’s book, as I see it, is that either the legal system embraces the challenge posed by win-win model, or it will find that other professionals fill the void and offer services that will do just that. Ordinary people want conflict resolved with less stress, less cost and less delay. Often, the situation that created the conflict was stressful in itself–and the person affected is looking for a way to reduce that stress rather than doubling or tripling it.

If lawyers wish to continue to be looked towards as conflict resolvers (as opposed to conflict continuers) then I suggest that Stewart’s theory (which he has been applying successfully for 25 years) is well worth a look. Perhaps as a profession we can grow in new directions and create new practice areas and new specialities and thereby keep the profession current and meaningful. Moreover, this would allow lawyers to continue to provide services in a legal model, it allows the community at large to look to lawyers as people in esteem (read: problem solvers) and allows lawyers to continue to craft solutions to real problems in new and meaningful ways.

OK, so you say, the system won’t be changed overnight. What can we do to make it work better right now? While Stewart Levine is calling for lawyers to branch out in new directions, the solution to make the present system work better may lie in our roots. Moreover, these suggestions may allow cases to be resolved at less cost and overhead and with less delay, translating into greater effectiveness as counsel and efficiencies for your practice. They will certainly lead to less stress, which will benefit not only us but the overcrowded medical system as well.

• Professionalism. It embodies more than the Rules of Conduct and the ethics of the profession. It is truly the grease that makes legal wheels turn. It does embody not taking instructions that you know will only delay matters. It means not taking unreasonable positions. It means treating opposing counsel as you yourself would wish to be treated (what used to be known as the Golden Rule as opposed to the Rule of Gold).
• Courtesy. All of us have lives outside of the practice. Insisting on strict compliance with the time limits in the Rules does not allow for any latitude for personal commitments, the pressure of other cases, important dates (birthdays, anniversaries etc.). Somehow lack of courtesy has become identified with being “tough”. Personally I think that is a wrong and misguided point of view.
• Respect. The word says it all.
• Being Timely. All of us are required to wait for others to do things as a fact of life. However, procrastination serves no one. I personally like the Nike Model: Just Do It.
• Candidness. In the media, it would appear, lack of candour has become identified with the lower rungs of the legal profession. Not admitting to our clients that they have less of a perfect case and compensating with devil take the hindmost tactics does little to benefit anyone.
• Caring. Yes, caring. We are officers of the court, which imposes a duty to the system. That duty must embody the responsibility to ensure that it continues to serve society in a meaningful way. We must care for our clients, for our partners and associates, for our staff and for the persons caught in the system, whether they are of similar views or not.
• Abrasiveness. We create our working environment. Uncivility demeans the profession, it unnecessarily drags out proceedings and sometimes results in unnecessary motions (which only increase costs to all concerned). The best advocates, I am sure, daily put on a professional demeanour just as our barristers put on their robes – to serve as a hallmark of office and an honour to uphold.
• Patience. Step back. Don’t try to get the last word. Bite your tongue, if you must. Say less than you mean. We have all heard these tidbits before. I would all one more: have patience with young or new lawyers. A good role model is a truly a treasure to behold.
• Perspective. Our professional lives are composed of an aggregate of our cases, good and bad. Gaining perspective is tough when you are in the trenches, yet taking a moment during the day to reflect on your ultimate goals and your purpose in life is advise that has been passed down throughout the ages. It also assists in making difficult short term decisions. If you reflect on longer term objectives, then rationalising short term gains becomes harder and less palatable.

Perhaps if we can rework the ethic of the profession, if we can embody and personify the highest ideals, we can put a greater sense of meaning behind our words when we refer to “My Friend”.

David J Bilinsky is a partner at Lakes Straith & Bilinsky and a principal of Integral Management Inc.

This article originally appeared in the October 1998 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.