Brian A. Pappas, Adjunct Professor of Law and Associate Director, Alternative Dispute Resolution Program at Michigan State University College of Law, is an attorney mediator trained and experienced in both facilitative and transformative methods. Today, Mr. Pappas, a UM alum, provides some insight into a recent shift in legal practice that is important for anyone interested in going into law.
Ask law students about why they chose law school and someone will proudly state that they love to argue. It is common to hear stories of students whose family or friends told them, “You love to argue, you should go to law school!” Without a doubt, developing and presenting compelling arguments is an important skill for a competent attorney. Going beyond arguing, the idea of the “warrior lawyer” is firmly entrenched in our society’s conception of legal practice. A recent book by Julie Macfarlane questions this adversarial advocacy paradigm. “The New Lawyer: How Settlement is Transforming the Practice of Law” describes a fundamental shift in legal practice from competition to collaboration. With 98% of cases settling before trial and negotiation, mediation, and other collaborative processes on the rise, the role of the lawyer is changing with a new form of conflict resolution advocacy taking form.
What is the cause of this shift? According to Dr. Macfarlane, there are three key variables. First, the internet and increased access to legal information diminishes a lawyer’s monopoly over highly technical information. Second, clients desiring greater participation are less and less content to allow their attorneys to proceed carte blanche. Finally, clients increasingly desire resolutions that minimize legal costs and maximize creative solutions. Alternative processes like mediation allow for such cost-effective, self-determined, “outside the box” solutions.
As a result of this shift, rights-based advice can be insufficient for advising clients on how to negotiate and successfully resolve their disputes. Winning does not necessarily require fighting hard for a certain position and a lawyer’s toolbox should include collaborative processes. Lawyers are and should be procedural experts in all forms of conflict resolution- from mediation to negotiation to arbitration or even trial.
If you are considering a legal career, I highly recommend that you read Dr. MacFarlane’s book. Also consider the following myths about law school:
All lawyers are litigators. With less than 2% of cases resolved at trial, fewer and fewer lawyers actually litigate. Collaborative processes like mediation and negotiation are growing and it is important to develop the tools necessary for conflict resolution advocacy. This includes effective communication skills (persuasion, questioning, listening, reframing), knowledge of negotiation and mediation theory, and the ability to assist clients in evaluating and deciding between multiple outcomes and options (client counseling skills).
The best pre-law major is political science. I teach students with a great diversity of backgrounds, including engineering, music, science, and math. There is no ideal major that will prepare you for law school. What is ideal is a program of study that will develop your written and oral communication skills and your analytic reasoning skills. Diversity of backgrounds and perspectives enhances the entire learning process and the more the better!
All law schools will prepare me to be an attorney in the same way. All schools have a fundamentally similar first year program, but then differ in their specializations and upper level course offerings. Many students worry that they need to know their career path upon entry, but that is not the case. It is important that students choose a law school with a robust group of dispute resolution courses and opportunities and a dedication to clinical education.
All lawyers like to argue/debate. The best lawyers are the best listeners and the best problem solvers. In order to be a great litigator, you must listen to the witness’s responses and to the other attorney’s questions. In order to be a great counselor, you must listen to your client’s needs and assist them in identifying options and avenues. I want a future generation of lawyers to enter law school because they were told “You’re a great listener, you should go to law school.” Strive to be a counselor in the full sense of the word, and not only will you be a better person for it, you will also be a great lawyer.