We lawyers have it tough.
If you’re a lawyer, you’re automatically looked at as a shark. Sharks don’t collaborate, so “collaborative” and “leader” don’t necessarily go together well in the public … or even, perhaps, in your own … eye.
However, many times the collaborative approach is in the client’s best interest. As the shepherds of our client’s best interests, we need to recognize that leading the client to a collaborative solution may well give our client their best bet to come out ahead of the game … or at least break even.
Years ago, I had a client who was one of the many sued by the Record Industry Association of America (RIAA) in their copyright infringement suits against unpaid downloads of songs and music. These were copyright infringement suits; the RIAA sued people who downloaded copyrighted songs controlled by the RIAA from torrent websites … places like napster.com. The websites, of course, kept records of who downloaded what and from what IP address; the RIAA either worked with the sites or subpoenaed the lists to get the names and IP addresses of long lists of plaintiffs, and they went after each plaintiff on the lists with the full force of a suit for copyright willfully infringed … that’s trebled statutory damages plus attorneys’ fees and costs. My clients had a teenager who had provably downloaded about 15-20 songs from such a website; however, because it was the dad’s name on the internet account, the lawsuit was against the parents (this was often the case with these suits). The best I could do for them … since this case was pretty unwinnable … was to recommend a collaborative approach to the RIAA to settle the matter. The demand in the lawsuit was upwards of $250,000; we settled for $2,500 and everyone went away reasonably happy.
Had we litigated this matter, my clients would almost certainly have lost the case and the appeal, and they would have spent far more than $2,500 plus my fee to do so. They would have ended up with a money judgment in the $250,000+ range against them. That might have caused them to end up in bankruptcy.
I led my clients to work collaboratively with the RIAA in negotiating a reasonable settlement, and thus to come out ahead of the game. But it did take a bit of persuasion for me to convince them that settling this matter was the appropriate way to handle it. They thought that $2,500 was ridiculously expensive for all 15 or 20 songs freely downloaded. And, in one sense, they were right; $2,500 is a steep price to pay for 15 or 20 songs. But when they look at it as an educational expense, it is remarkably cheap. My clients and, especially, their teenager (who ended up working to pay her parents back that $2,500 plus my fee) learned that copyright has teeth and that they need to think twice before infringing others’ intellectual property rights.
By settling with the RIAA without admitting any wrongdoing or accepting any fault, no money judgment was entered against my clients, their credit record remained unblemished, and the RIAA went away satisfied since they didn’t have to work hard to get that $2,500.
That’s only one example of how collaborative leadership can work in a client’s best interest.
How about collaborative leadership between attorneys? How might that work?
Transactionally, if I have a client who wants what your client has and your client is willing to provide what s/he has to my client, our clients usually end up collaborating in some way: purchase and sale, contract, merger and acquisition, acquisition of services, whatever the deal might entail. As the attorneys who represent our clients, it becomes our job to help our clients’ deals close. And yes, while it’s our job to point out the perils of the deal to our clients so our clients enter the deal with full information, it’s also our job to help our clients achieve their goal(s) for the transaction. Thus, we have to communicate and collaborate with the attorney for the other party or parties in the deal to mutually work for our client’s best interests.
By leading our fellow attorneys into collaboration, we make life much easier for our respective clients, for ourselves, and for our colleagues. But someone has to lead into collaboration. When my clients go into deals, that someone is me. I want that deal to be set up as something everyone … EVERYONE … can live with for years to come. By leading my client into collaborating with the other party, and leading that other party’s attorney into collaborating with us, we are far more likely to achieve that long-lived goal.
Leading into a transactional collaboration is easy; leading into collaborating during litigation … might be more difficult. But even in litigation, we can show leadership by cooperating with opposing counsel to some degree. For example, when opposing counsel requests an extension of time, we can give them reasonable extensions; it’s truly no skin off of our nose to be that nice, as long as the extensions don’t compromise our clients’ positions. We can negotiate with opposing counsel to help our clients come up with settlement possibilities, rather than have our clients rely on that stranger up there in a black robe whose ruling will dictate their lives for years to come if we let our clients litigate. We can lead our clients toward discussing and mediating the dispute and thus maybe get them to avoid litigation altogether.
As lawyers, we have the power to change our clients’ lives for the better … or for the worse. After 20 years of practice, I’ve noticed that usually “better” means collaboration; “worse” often means breakdown and sometimes litigation. Collaboration is therefore where I tend to lead my clients and my fellow attorneys.
