August 16, 2019 Article

Flexibility in the Legal Profession: Five Practical Tips for the Courtroom and Beyond

Be the best negotiator, evaluator, advisor, and advocate by becoming more flexible in your approach.

By Caroline A. Morgan

Lawyers wear many hats. As a representative of a client, a lawyer is a negotiator, evaluator, advisor, and advocate. And lawyers wear those many hats in many different environments, as each case or obligation throws new challenges our way. Given the dynamic nature of the practice of law, it is important to be agile, rather than sticking to a single skill set or script. The tips below are designed to help lawyers think about the situations they face with an open mind so that they can take advantage of all possible options with a flexible approach. 

Flexibility Tip 1: Keep All the Players in Mind

A legal dispute involves many players, including the parties, opposing counsel, and a judge. Litigators commonly focus on who the judge is, but opposing counsel is also a key player in any dispute. Industry commentators estimate that 95 percent of cases settle before trial. Drawing on the collective knowledge of your professional network to glean information about opposing counsel can foster effective communication early on in a case and provide invaluable information to your client.

Flexibility Tip 2: Provide Information the Way That Your Audience Processes It

People process information differently. Some prefer to hear it while others would rather read it or see it depicted in a table or a graph. Whatever your personality or comfort zone is, customizing the way that you deliver information to the way that your audience processes it can make it more likely that your audience will understand you. If a client is always calling you, chances are that picking up the phone will be more effective than sending the client an email. Some judges appear to put more stock in oral argument than in briefs. By paying attention to how a colleague, client, or judge communicates with you, you can discover how they prefer to receive information and in turn increase your chances of having them understand your points.

Flexibility Tip 3: Think Like a Problem Solver

Attorneys are problem solvers. That said, unlike a math problem where there is only one answer, a legal dispute can be resolved in a number of ways. In the context of a settlement, both sides will generally have deal breakers, but the concept is that each party gives up something in order to resolve the dispute. Deal breakers are, by definition, not negotiable. Therefore, flexibility on the negotiable terms is key to solving a dispute. Working with your client to separate the true deal breakers from the negotiable terms can facilitate a resolution.

Flexibility Tip 4: Leave the Legalese at the Office

Explaining a legal concept without using legal terms may be more effective. Every profession has its own unique vocabulary, and the legal profession is no exception. We might discuss an upcoming 30(b)(6), celebrate winning a summary judgment motion, or speak in a foreign language—res ipsa loquitur, anyone? The job of a lawyer, as an advisor, is to provide his or her clients with an understanding of the matter, their rights and obligations, and the legal implications of their options so that they may make informed decisions. If a lawyer can explain legal concepts without using legalese, then the lawyer can more likely effectively advise his or her clients.

Flexibility Tip 5: Remember the Big Picture

As an advocate, a lawyer zealously asserts his or her client’s position. A “concede nothing” strategy is an approach that some lawyers take. While it may have its place in some contexts, when taken to an extreme, a lawyer can lose sight of the big picture. I have seen lawyers spend precious time before a judge arguing why they should not have to email a second copy of a notice of a deposition to an adversary, that their opponent’s papers are untimely because they emailed them less than one hour after the deadline, and other similar arguments. This type of “concede nothing” strategy may communicate to your adversary that you will dispute every aspect of a case, but it can have a negative impact on your credibility in the courtroom. Incorporating flexibility into your practice does not make you any less of an advocate; rather, it allows you to keep your focus on the big picture.

Takeaway

One of the remarkable aspects of litigation is that every case is different. Generally, each case brings with it its own facts, parties, counsel, and judge. Being flexible in the way that you practice law, both in the courtroom and beyond, can be an effective tool to be the best negotiator, evaluator, advisor, and advocate for your client. 

Caroline A. Morgan is an associate at Fox Rothschild LLP in New York, New York.


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