March 16, 2004

TPB: On Thinking Like A Client: My Views on the Knowledge and Understanding Necessary to be an Attorney.

I then broke out into a cold sweat. I re-read Bashman's To Think Like A Lawyer and Professor Lawrence Solum s What Do Law Schools Teach?, and I realized that there is little that I could discuss about the law or legal education that these two esteemed attorneys have not yet covered, and covered better than I could. I am a third-year litigator. My experience with legal practice is not as vast as Mr. Bashman's, and my academic performance is not as stellar as Pr. Solum's.

As a matrimonial attorney, a practice area that is not well-received in the legal community or the community at large, and for obvious reasons, I have the benefit of dealing with a diverse group of clients on a daily basis and in a fashion that is remarkably intimate and sensitive. What I discuss with clients is often matters of a personal level that they do not feel comfortable discussing with friends, family members, or spiritual advisors (rabbis, priests, ministers, and the like). Sexuality. Parenting. Crime. Personal finances. I discuss issues of a very real, very personal, and very human nature.
So, to those law students who read these contributions, I would like to discuss not so much what they should learn about the law or legal practice, but what they should learn about humanity before entering the practice.

In What Do Law Schools Teach?, Solum wrote:

Historians are trained to immerse themselves in the original materials--the archives, records, pamphlets, and diaries. Sociologists are trained to do both survey and experimental research. Economists are trained to use a set of mathematical techniques. But what do academic lawyers know how to do? What do law schools teach?

Lawrence Solum, What Do Law Schools Teach?, De Novo (March 15, 2004).

I wish to modify that question slightly. What should practicing attorneys know? How should they--we--learn it?

Our goal as attorneys is to zealously represent our clients. Even though the Model Rules of Professional Conduct now state that as attorneys our duty is to "act with reasonable diligence and promptness" in our representation of clients, our actual goal must be the zealous representation of clients. See MRPC 1.3 (2001). We must want our clients to win. We must want that their interests are satisfied. For those engaged in adversarial practices, such as myself, this generally means that the goal is sometimes to zealously fight against the interests of adverse clients. To zealously represent a spouse in a divorce, I must, on occasion, know how to (and zealously attempt to) thwart the interests of the other spouse. To zealously represent a criminal defendant, a defense attorney must know how to (and work to) thwart the interests adopted by the prosecutor (who embodies the interests of the people). So, just as an initial matter, my duty of zealotry, so to speak, requires the courage to stand up and oppose others. We--you, the law students, and I, the still-developing, young attorney--need to learn how to obtain that courage.

More fundamentally, though, we need to understand our clients and their interests (and to understand the adverse parties and their interests). Before I can act in my client's interest, I need to know what it is that he or she is seeking. This is where knowledge of humanity comes in, and where my advice comes in.

It is, quite simply, that you must not be made incapable of understanding the goals of your client by virtue of the fact that you only have knowledge and understanding of law. Clients are human. They have very human goals, rooted in their psyches. Even if you only represent corporate clients, you are dealing with a corporate client s flesh-and-blood representatives or officers.

Thus, getting back to the question of what should practicing lawyers know, the answer seems to be that which allows them an entryway into the minds of their clients. They must know more than the law. Getting into the mind of your client, on some level, is essential to articulating and striving for that client's goal or to preserve that client's interest. You cannot seek a goal that you cannot identify.

To some extent, the knowledge required to understand a client's interest or goal is purely experiential. As you develop your personal lives, your legal practice will benefit from the experiences that you have that mirror the experiences of your clients. You may understand how important and personal it is to own a home--not just any home, but the home you rebuilt. You may understand how important it is for a client to live a certain lifestyle because you are also accustomed to living that lifestyle, and therefore you are able to express the loss of that ability to a jury and serve a client who has been, say, injured and made incapable of earning an income. However, there will be times where you and your client are the products of different worldviews and have thoroughly divergent experiences. You may be a traditional, devout Catholic, married at age twenty-two, and have three children, and therefore not understand how mortifying and demeaning it is to be told that you cannot be married because your sexuality does not fit in with how conventional society understands marriage. You may not understand how important it is to an individual accused of a crime that he or she be allowed to speak on his or her behalf because you have never been arrested and never felt the stigma of society's image of the accused.

Solum questioned, as I quoted above, what it is that lawyers and law students should study in order to fit within a cohesive "legal" field of study. Perhaps he is right that there should be a methodology that should be fitted upon the study of law for purely academic reasons. However, when we represent clients, the nice people that pay our bills and look to us for justice, we need to go beyond being doctrinal. We need to know humanity. We need to find a way to bridge the gap between our own experiences and the experiences of others so that we may better serve them.

So, that is my advice to you: find a way to know your fellow man and woman, even if you have never had to endure the same experiences to which they have been subjected. This is not a simple or trite "walks a mile in their shoes" matter. This requires real study. In learning how to represent clients, I have spent a great deal of time re-learning social psychology. I continue to review monographs on, say, what people are actually saying given certain non-verbal cues, on behavior patterns that indicate false statements (rapid eye blinking seems to be the big one), or on how language can be structured to encourage cooperation and agreement. I read police manuals on interrogation in order to understand how to conduct depositions so to elicit as much accurate information from adverse parties as possible. I read literary journals on how narratives can be constructed in order to re-think how I write briefs and present oral argument because I need to be more convincing to a judge or jury. My mentor, who deals with clients who tend to have strong material interests at stake, focuses a great deal of study on accounting/valuation methods and financial planning.

Not all of it is formal science. I know attorneys that learn about how to serve their clients interests by moonlighting as bartenders, so that they understand how people can be encouraged to divulge information. Others learn to better understand their clients by working on Harleys with bikers, in order to get out of the largely homogenous social world of the law.

You will need to serve a client well, if you intend to spend much time practicing as an attorney (whether as a litigator, a personal counselor, a corporate attorney, or a trustee). In order to serve a client well, you need to understand how that client thinks. Law school is not the place to learn that. It is there to teach you how the law works and how judges, lawyers, and other decision-makers think. Outside study, whether of psychology, economics, criminal science, sociology, or simply of how drunk bar patrons act, is necessary to understand your clients and to serve their interests zealously. As law students, you need to discover what method works for you to so understand a client and to serve his or her interest. Besides, if I may step from behind the curtain of "the legal practice," it's good for you to learn about these things. It makes you a more competent person (and, as for psychology, it helps a lot with your relationships and how you deal with stress).

One postscript: In learning how to serve human interests and how to understand "how we tick," there is the potential to use that knowledge in a manner that is, to an individual, unethical. For example, knowing that, according to social psychology, children are susceptible to "false memories" and can be coached in to recalling abuse that never occurred, and that such an allegation would better serve your client in a custody battle, you have the opportunity to produce ethically tragic results by way of your actions as an attorney. I am no one to speak of what you should know to avoid doing this, but you need to develop your moral backbone in order to establish, for yourself, how to address these difficult dilemmas.