Developing Better Lawyers and Lawyering Practices

This article provides an overview of a symposium sponsored by the University of Missouri Center for the Study of Dispute Resolution in 2007 that featured leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. The authors include David Hoffman, Nancy Welsh, Julie Macfarlane, Richard Shields, Pauline Tesler, Scott Peppet, Forrest (“Woody”) Mosten, Jeanne Fahey, Kathy Bryan, Lawrence McLellan, and John Lande.

The articles address issues including: teaching law students to “feel” like lawyers and not just “think” like them, using “conflict resolution advocacy” (which is not necessarily oriented to the courts), developing lawyers’ professional orientation in practice, working with non-legal professionals, complying with ethical requirements in Collaborative Law, obtaining clients’ informed consent to use Collaborative Law, providing Collaborative Law to low-income parties, using settlement counsel techniques in business disputes, using a variation of Collaborative Practice called Cooperative Practice, and overcoming tensions within the dispute resolution field.

Several major themes run through the symposium articles. All the contributors agree that there is a value to continued innovation in lawyering practices and that there are many difficulties in disseminating and adopting them. Getting lawyers (and parties) to seriously consider innovations is a major challenge, and innovative lawyers need to develop effective ways to overcome unwarranted skepticism and resistance. For individual lawyers, implementing the changes discussed in the symposium requires much more than learning new legal concepts. For some, it requires a supportive legal culture and framework to enable them to enact their longstanding professional values. For some, it requires a significant re-orientation described by Collaborative practitioners as a “paradigm shift.” For most lawyers, it takes experience in dealing with difficult cases, sometimes learning from mental health and other professionals.

New models of lawyering also require sensitivity to ethical concerns, especially the importance of eliciting clients’ informed consent to unfamiliar variations of legal practice. Innovators should also be sensitive to the needs of parties without substantial resources, including legal aid clients and much of the middle class population.

Promoting good party decision-making should be a fundamental goal in lawyering. Lawyers should help parties make well-informed choices about the dispute resolution process as well as the substantive issues. Lawyers should respect different processes and models, rather than denigrate some as generally inferior in a supposed competition for the title of “best dispute resolution process.” Thus the legal profession and dispute resolution field more generally should have the goal of developing a variety of desirable processes from which parties can choose.

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John Lande

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California.… MORE >