Guy O. Kornblum
The role of the civil litigation advocate is changing from an advocate in the adversarial process to a leader in the dispute resolution process. Without compromising the lawyer’s role as an advocate and salesman for the client’s cause, the emphasis is more on resolution than contentious advocacy.
I was intrigued by 2012-2013 ABA President Laurel Bellows’ “President’s Page,” entitled, “Leading-Edge Opportunities,” in which she described new areas of practice evolving and how the ABA is contributing to this evolution. One of them was entitled “Dispute Resolution.” She said,
“The expanding field of dispute resolution provides many lawyers with a way to be healers. Collaborative law agreements – where lawyers and clients agree that the goal is to do everything possible to keep cases out of court – are growing. Demand for mediation also is increasing. Interested lawyers can get on-the-job training by volunteering for court system programs that offer mediation as an alternative in cases from medical malpractice and probate to child protection and family matters. The ABA’s Section of Dispute Resolution is at the forefront of these issues.”
The civil litigation practice has and is changing. We are no longer “warriors” (a term sometimes used to describe civil litigation lawyers; the use of warlike terms in this context is wrong in my view).
While there are cases that may need to be litigated, as our client’s counsel, we need to create a strategy for handling a client’s matter so that there is a chance for a timely resolution short of trial.
As Professor J. MacFarlane from the University of New Brunswick says in her book, The New Lawyer: How Settlement is Transforming the Practice of Law, “A 98 percent civil settlement rate and the increasing use of negotiation, mediation and collaboration in resolving lawsuits have dramatically altered the role of the lawyer. The traditional conception of the lawyer as ‘rights warrior’ no longer satisfies client expectations, which center on value for money and practical problem solving rather than an expensive legal argument and arcane procedures.”
If avoidable, clients don’t want protracted litigation – they want a fair, equitable and timely resolution. It is our job as lawyers in the dispute resolution practice to meet these expectations by using our skill, intellect, training and experience to accomplish this goal.
About the author:
Guy Kornblum, a specialist in civil trials, arbitrations and appeals, is a partner in Kornblum, Cochran, Erickson & Harbison LLP. He is a member of BASF’s Mediation Services panel; more information about him and the program can be found at www.sfbar.org/mediation.