The New Normal
‘Justice’ and the New Normal
Posted Oct 11, 2011 7:45 PM CDT
By Patrick J. Lamb
After my last post, “What Law Firms Can Learn From Steve Jobs,” there were a couple of comments that gave me pause. My post discussed the role of design, or ease of customer use, in the delivery of legal services. Several commenters agreed with at least the gist of the post, but others were critical. A commenter named Bill Day wrote: The word I must have overlooked in this article is ‘justice.’ The real question is whether better design will lead to fairer outcomes.”
Richard Hunt added this:
“Bill makes a good point. All the talk about law as a business can fail to take into account the business of law. In transactional work questions of value to the client and client perception of value may be the most important considerations, but in litigation the ultimate goal is just outcomes—the adversary system is merely a tool that society uses to achieve those just outcomes. When we forget the goal of our work it becomes very easy to fail to meet it, and so any business model or idea must be constantly tested against the tension between client needs and desires and the possibly very different demands of justice.”
I appreciate the thoughtful comments. While my post was devoted to a single idea and not intended to be an exhaustive dissertation on all of the elements of the New Normal, the comments do suggest that the New Normal should be to improve justice. I don’t agree with the premise of Richard’s comment that the “ultimate goal [of litigation] is just outcomes.” That has never been the real goal of litigation, at least not ever in my lifetime (and I’ve been practicing since 1982). I know some commenters are likely to pillory me for this statement, but that’s the way it is.
Let’s begin with a discussion of justice and clients. When a client calls me, she rarely expresses an interest in justice; she wants a good result for her company. Lawyers who are the losing end of a verdict rarely take comfort in the fact that “justice was served.” Simply, my job is win, however my client defines winning.
Having said this, many lawyers advise clients to not proceed with lawsuits because they are not well taken, or the client is likely to lose and waste resources en route to doing so, or because the cost of a win is not worth the expenditure of resources. Some may see justice in that advice, because justice may be in the eye of the beholder, the one offering advice. For me, I see business judgment.
The structure of our adversary system may well be to achieve justice. The system, however, is neutral. It doesn’t care about the New Normal or the old normal. Many would say that the system’s focus on process and rules instead of a streamlined approach to result tips the scales in favor of some. It certainly tips the scales in favor of inefficiency and delayed outcomes. Regardless, the system is what it is. Lawyers do not play the same role as the system—lawyers represent their clients with zeal, and advocate their client’s position to the best of their ability, even if they don’t favor it. Lawyers do not do less than their best because they think losing is the just result.
I hope Bill forgives me for not writing about justice in all of my New Normal posts. It’s not that I don’t care about justice. In the abstract, it’s a fine idea. But in practice, the focus is on results and making my clients happy. I suspect that is true for most lawyers, whether part of the New Normal or the old normal. The New Normal is a different path to those ends. Some see a need for that different path. Not everyone, though, and that’s fine, because the hallmark of the New Normal is the market as driver, with no monolithic system dominating the profession.
Patrick Lamb is a founding member of Valorem Law Group, a litigation firm representing business interests. Valorem helps clients solve their business disputes and coping with pressures to reduce legal spend using nontraditional approaches, including use of nonhourly fee structures, coordination with LPOs or contract lawyers, joint-venturing with other firms and implementation of project management tools to handle lawsuits or portfolios of litigation.
Pat is the author of the the recently published book Alternative Fee Arrangements: Value Fees and the Changing Legal Market. He also blogs at In Search Of Perfect Client Service.