A man goes to the doctor with chest pain. The doctor finds a small growth next to his heart. The growth can be removed, but it’s a very delicate operation due to the location. The doctor offers the man the choice of two surgeons:
- Surgeon A is highly specialized. She has extensive experience with this type of surgery and has a tremendous success rate. “However,” the surgeon says, “Because I’ve chosen to focus my work on this type of surgery, there is a chance that we would want to bring in another surgeon if something goes wrong during the procedure. I don’t expect it, but it could happen.”
- Surgeon B is a generalist, a Swiss Army knife of surgeons. He has some experience with this type of surgery, but it’s not the focus of his practice. “I can handle any situation that comes up during the surgery,” he boasts. “I wouldn’t want you to limit your options and have to change surgeons in the middle of the procedure.”
Surgeon A, right? It’s a no-brainer.
If that's true, then why do so many family lawyers dislike the concept of settlement counsel — an attorney who focuses exclusively on negotiations and bows out of the case if litigation is necessary? Doesn't the same logic apply?
Let’s give surgeon B the benefit of a doubt. He cares about his patients. He wants them to be healthy, and he truly believes that by personally offering the full range of surgical procedures, he is fulfilling his Hippocratic oath. The equivalent in law is the duty of zealous advocacy. Lawyers often believe that they can’t advocate zealously for their clients if they restrict the scope of their representation to settlement counsel and exclude themselves from litigating.
There are two problems with this view of “zealous advocacy:"
First, a lawyer who anticipates litigation is necessarily compelled to view the case in adversarial terms, always thinking about gathering facts and building a theory of the case that paints one party as the inevitable ‘winner’ and the other as the inevitable ‘loser.’
The theory of the case is a powerful, but extremely blunt, tool in the litigator’s arsenal: “Settle on my terms or I’ll have a judge do it.” This approach is simply incompatible with what it takes to reach meaningful settlement: building bridges, finding shared interests, and forming consensus. Do we really expect a lawyer to probe a party’s most private thoughts in a deposition one day, and then engage in principled negotiations with that same party the next day? Never mind whether the attorney thinks it can be done — how can we expect the party to ever trust that attorney in negotiations?
It’s no wonder that so many cases settle on the eve of trial: settlement becomes a last resort, rather than a mutual accomplishment.
Second, viewing a case through the lens of litigation encourages lawyers and their clients to focus on measurable outcomes — asset division, support amounts, hours spent with their children, etc. — because those are the outcomes a judge can determine.
But in many cases, particularly family law cases, there are complex interests involved that really aren’t measurable in that sense. Honoring what remains of a deep friendship. Forming a healthy co-parenting relationship. Being able to tell their children that it was a dignified process. Avoiding the embarrassment of an adversarial hearing. These are almost always shared goals of divorcing spouses, and yet those shared goals are consistently undermined by a litigation mindset. We all know what happens to parents who spend months (or years) working with their lawyers to paint each other in the worst possible light…
Now, let’s consider what settlement counsel can accomplish, by explicitly and transparently announcing that he or she won’t litigate the case:
- Settlement counsel can focus on principled negotiations without being pulled in the opposite direction of building an adversarial case against the other party.
- Settlement counsel can get to know the other party in a setting that’s non-threatening and fosters trust, allowing both parties to explore their respective interests and work toward shared understandings — opening up options for creative, mutually agreeable solutions.
- Settlement counsel can explore the clients’ intangible interests, being a “zealous advocate” for those interests and not just the ones that are within a judge’s limited authority.
- Settlement counsel can assure the client that disagreements will be negotiated by the most respectful means possible, and the case will be transferred to a litigator only if absolutely necessary. (There could even be an understanding that a particular litigator has been identified if the need arises.)
There are times when litigation makes sense. A party might refuse to negotiate, or the dynamic between the parties might prevent meaningful negotiation. In some cases, it might even be necessary to use the high cost of litigation as a blunt stick to encourage settlement. But too often, the people who benefit most from litigation are the attorneys. Whatever their best intentions might be, we can’t ignore that financial incentive. Clients are certainly aware it; they know that we are keepers of the legal process, and yet we benefit the most when that process is least efficient.
Going back to the surgeons, suppose you had initially chosen surgeon B. Would it change your mind to know that surgeon B gets paid by the hour, so the more complicated the surgery, the more he gets paid? It’s not to say that the surgeon intends to hurt the patient, but what is the surgeon’s incentive to focus on the skills needed to avoid complications more consistently? The disincentive might be entirely subconscious, but it can’t be ignored.
For some lawyers, the choice is very conscious: they don’t want to give up litigation because they need the income. But there is no shortage of cases out there, and lawyers can make a very good living without litigating. In fact, we can often attract more business by modeling ourselves after surgeon B and offering highly focused services that are appealing to clients. Some of us are living proof of that, having sworn off litigation completely and focusing our efforts on being the most effective mediators, collaborative attorneys, and settlement attorneys we can be. It’s not only financially feasible, but it’s what most clients actually want!
Consider, in parting, these words of Abraham Lincoln:
That is exactly what settlement counsel does.
*Rackham Karlsson is a family law mediator and collaborative attorney based in Cambridge, Massachusetts. His blog and podcast series, The ADR Initiative, focuses on building profitable alternative dispute resolution businesses.