Things to Consider in Order to Select an Attorney Who is a Problem Solver and Not a Conflict Creator

Posted By Pasadena Family Law Attorney || 11-Sep-2011

Problem-solving is a hallmark of a good lawyer. It involves a creative attempt to discover a result that may be outside the specific provisions of law, ruling, or statute, but that will represent the best reasonable outcome for all of the parties involved. Since law schools, historically, have not taught problem-solving skills, the American Bar Association (ABA) advises lawyers-to-be that they must enter law school with a reasonably well developed set of analytic and problem-solving abilities, in order to become a competent lawyer.

However, unlike medical schools, law schools do not require that incoming students major in any given field of study. Furthermore, very few college majors are of the problem-solving variety, also known as quantitative fields. The following are examples of such college majors: mathematics, physics, economics, engineering, business administration, biology, chemistry and computer science. One need not develop skills in problem-solving in order to successfully complete a course of study in majors such as English, political science, sociology or history, which are thought of as representing primarily verbal fields.

The ten most popular majors for pre-law students are as follows: (1) Political Science; (2) Business; (3) International Relations; (4) English; (5) Psychology; (6) Communications; (7) History; (8) Music; (9) Sociology; and (10) Economics. I want to point out that the only qualitative majors from that list are Business and Economics. It is also important to note that "college students who are contemplating the field of patent law as a career choice should major in engineering, physics or the natural sciences (such as chemistry and biochemistry). In order to eventually practice in this field, an aptitude and liking for science and technology is an absolute must." Thus, lawyers with undergraduate degrees in those areas often practice patent law and are therefore not practicing in other areas of law.

This then raises the question: "Why do law schools assume that their incoming students have a reasonably well developed set of analytic and problem-solving abilities?" If the law schools do not teach such skills because they assume the students have developed those skills before entering law school and if the law schools do not require incoming students to have graduated from college with a problem-solving type of major, how do the students acquire the skills that are needed to become good lawyers? According to the ABA, if the law students did not learn such skills while in college, they may have developed those attributes through extra-curricular and life experiences.

I contend that problem-solving has become a lost art in the practice of law. I don't mean to imply that all lawyers are lacking in such skills. Unfortunately, since it is not mandated that anyone learn problem-solving skills to receive a law degree, most lawyers do not learn such skills. By teaching lawyers to identify problems, but not training them to solve problems, the practice of law has shifted from resolving conflict between parties to creating it. This is particularly detrimental in cases dealing with children and families as heightening conflict causes wounds that often last a lifetime.

It is therefore incumbent upon the client to carefully interview an attorney before making a hiring decision. Although nothing in life is certain, we can all exercise due diligence in an effort to make reliable intelligent choices when it comes to selecting a lawyer. There are certainly many factors that must be considered before making such an important decision, but let's focus on the problem-solving component, since that is so important.

The easiest and probably most accurate way of making such a determination is by asking the lawyer about his/her undergraduate field of study. If the attorney obtained a degree in a problem-solving/quantitative field, the client can be comfortable that the attorney's skills in that regard are well developed, unless those abilities faded over time from lack of use.

If the attorney's undergraduate degree was not of that variety, the client would need to inquire about the lawyer's extra-curricular or life experiences in an effort to learn whether the ability to problem-solve was acquired through some other means. People learn problem-solving through extra-curricular activities in the arts because one must think creatively to successfully perform music, or act in a play. Some sports can also teach problem-solving skills. The activities that encourage natural curiosity and interest tend to produce the best results. Therefore, a client might ask the attorney whether they ever played in a band or orchestra, performed in a play, or played quarterback on any football team. I want to make clear that not everyone who plays a musical instrument or acts has developed quantitative reasoning skills. However, a musician who regularly performs live with a band or orchestra must have developed those skills because problems or mistakes will occur during or in preparation of the performance and the musicians must be able to problem solve in order to resolve and/or mask those problems/mistakes. The same is true for actors who perform in the theater.

Since quantitative reasoning skills are so essential to the competency of an attorney and since so many entering law students lack such skills, "some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills." While this is certainly a step in the right direction, it is insufficient if the intention is for the graduates to have a well developed set of such skills. If law schools really want to train competent lawyers, they must limit admittance to those students whose undergraduate degrees are in a quantitative field of study.

Many attorneys obtain outside problem-solving training through mediation programs, or through other means. However, please note that mediation is unregulated in most places, including California. Thus, a person can practice as a "mediator" without ever having received any formal training. Therefore, a client should inquire as to the mediation training the attorney received. Basic mediation training is a 40-hour course. Is it realistic to assume that a person who graduated from law school without a well developed set of problem solving skills will acquire them through basic mediation training? They may acquire some such skills, but never to the extent of those who developed those skills in order to obtain their undergraduate degree.

Thus, if a client wants to find a problem-solving attorney, he/she should attempt to learn how the attorney developed problem-solving skills without asking that question directly. If the lawyer realizes that a client is trying to find a solutions-oriented attorney, they can always formulate an answer they think would satisfy the client. Obviously, the client could ask the attorney to give an example of a case which they resolved through creative problem solving. Again, the lawyer may respond by telling the client about a situation that did not even involve them and make it their own because they want to be retained. Before retaining an attorney, the consumer would be wise to do some independent research on the particular attorney and to request references and/or testimonial letters from former clients.

In my twenty years of practicing law, I have found that clients focus on the wrong things when interviewing an attorney. They often want to know about the law on a particular issue. Bear in mind that any attorney who practices law in that particular field should be able to answer that question. Therefore, it is not a question that should be asked when interviewing an attorney; rather, it is the type of thing a client should ask after retaining the attorney. Clients also tend to get into the specifics of their case because they want they attorney to tell them the most likely outcome. What the clients need to realize is that cases either resolve through the consentual agreement of the parties involved or because a judicial officer decided the matter. We cannot possibly know whether or not the parties will ultimately reach an agreement or the terms of any such agreement. By the same token, we lose control over the outcome when we allow the matter to be decided by a judicial officer. Judges or juries are responsible for deciding factual issues and then judges are expected to properly apply the law. At a great expense, a person can successfully appeal a judical ruling if he/she is able to establish that the judicial officer failed to apply the law properly. However, judges are given a great deal of discretion and "factual findings are not reversable by the appellate court." Unless the facts are undisputed and the law is very clear on the issue, how likely is it that an attorney can accurrately assess the outcome of a case? Research shows that lawyers are "overconfident in their predictions, and calibration did not increase with years of legal experience."

"It is a mistake to ignore the fact that judges attended the exact same law schools as those lawyers who argue before them, and are therefore in the same deficient situation when it comes to problem-solving skills."

It should also be noted that "countless politicians have pursued law degrees prior to starting their career in politics." The fact that our government is broken is old news. The ability to solve difficult problems "requires a spirit of compromise and bipartisanship." Unfortunately, what would our politicians know of problem-solving, when they received no such training. Rather, they were trained to create more problems.

The failure of law schools to limit admissions to those students who obtained degrees in quantitative reasoning fields is negatively impacting every aspect of our society. In order to reverse this trend, law schools must change their admission policies.