4.11 Conclusion
In the end, the rule utilitarian model maybe best for all kinds of client, individual, corporate, non profit, or institutional. After all rules, peace first, low cost, simple solution, low profile, capture the long term interests of most of us.
Still, there is a need to consider justice concerns. Perhaps the client wants justice. Perhaps there is too much at stake for the client to take anything less than a win. Perhaps there is a need to establish precedent. Perhaps they want to win as a matter of principle. These kinds of disputes may require a different set of factors and or hierarchy of analysis.And maybe it is where we these justice concerns raise their heads that the learn can start to discern when litigation is the best option. The next chapter explores the legal strategy of negotiation and mediated solutions.
FURTHER READING
Books
Tom Rusk, The Power of Ethical Persuasion, (NY: Viking 1993).
David A. Binder, Paul Bergman, and Susan C. Price, Lawyer as Counselor: A Client-Centered Approach (West Publishing, 1991, 2004).
Articles
Articles in George M. Cohen and Susan P. Koniak, Foundations of the Law and Ethics of Lawyering (2004).
Paul J. Zwier, The Ethics of Care and Re-Imagining the Lawyer Client Relationship, 22 J. CONTEMP. LAW 383 (1996).
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1. Jacques P. Thiroux, Ethics: Theory and Practice (1977) (hereinafter Thiroux); See W. Frankena, ETHICS, 13-20 (1963); Professor MacCormick, who studies these categories in his article “On Legal Decisions and Their Consequences: From Dewey to Dworkin,” defines this division of decision making ethics as follows:
One can conceive of two extreme positions. On the one extreme, the only justification of a decision would be in terms of all its consequences, however remote B in terms, that is, of its productivity of the greatest net benefit, taking together all consequences and judging them by some suitable criterion of benefit and detriment.
On the other extreme, the nature and quality of the decision, regardless of consequences however proximate, would be alone allowed as relevant to its justification or its rightness. MacCormick, “On Legal Decisions and their Consequences,” 58 N.Y.U.L. REV. 239 (1983).2. In 1772, Benjamin Franklin described his problem-solving method—his “moral or prudential algebra”—as follows:
When … difficult cases occur … they are difficult chiefly because while we have them under consideration all the reasons pro and con are not present to the mind at the same time; but sometimes one set present themselves, and at other times another, the first being out of sight. Hence the various purposes or inclinations that alternatively prevail, and the uncertainty that perplexes us. To get over this, my way is to divide half a sheet of paper by a line into two columns; writing over the one Pro and over the other Con. Then, during three or four days consideration, I put down under the different heads short hints of the different motives, that at different times, occur to me, for or against the measure. When I have thus got them all together in one view, I endeavor to estimate their respective weights; and where I find two, one on each side, that seem equal, I strike them both out … [A]nd thus proceeding I find at length where the balance lies; and, if after a day or two of further consideration, nothing new that is of importance occurs on either side, I come to a determination accordingly. Letter to Joseph Priestly in 1772, in 4 The complete Works of Benjamin Franklin 522 ( J. Bigelow ed., 1887), quoted in Robin M. Hogarth, Judgment and Choice (2d ed. 1987).
3. Paul A. Binder, Paul Bergman, and Susan C. Price, Lawyers as Counselors: A Client-Centered Approach, 83 (West, 1991)
4. I have written elsewhere in criticism of the prevailing model. See Hamric and Zwier, “The Ethics of Care and Reimagining the Lawyer/Client Relationship,” 22 J. CONTEMP. L. 383, (1996).
5. Much of what follows comes from ideas and discussion that came out of a NITA program called, Reinventing the Lawyer/Client Relationship.
The intellectual leaders of that group included Maude Pevere and Janeen Kerper. Maude first discussed with us the four-step counseling model, “Get, Give, Merger, Go.” She and Janeen also first described to me Tom Rusk’s book, The Power of Ethical Persuasion, which informs much of my thinking. Again these ideas are more than “just ideas” but have been tested, taught, and used by lawyers in a variety of settings and situations.6. Tom Rusk, The Power of Ethical Persuasion (NY: Viking 1993).
7. Id.
8. Madelyn Burley-Allen, Listening, The Forgotten Skill, 2d Ed. p.131 (1995).
9. Tom Rusk, The Power of Ethical Persuasion (NY: Viking 1993).
10. Again, lawyers can learn from psychiatry. Rusk has three steps to creating resolutions. They are:
1. Affirm your mutual understanding and confirm that you are both ready to consider options for resolution.
2. Brainstorm multiple options.
3. If a mutually agreeable solution is not obvious, try one or more of the following:
a. Take time out to reconsider, consult, exchange proposals and reconvene.
b. Agree to neutral arbitration, mediation, or counseling.
c. Compromise between alternative solutions.
d. Take turns between alternative solutions.
e. Yield (for now) once your position is thoroughly and respectfully considered.
f. Assert your positional power after thoroughly and respectfully considering their position.
g. Agree to disagree and still respect each other; then, if you can, go your separate ways on the particular issue. Rusk, The Power of Ethical Persuasion, at 148.
11. As a possible final step, the counselor might consider drafting an agreement which can memorialize the agreed-upon solutions. Such a process suggests bargaining over the rights and duties of the parties. At least one commentator feels that bargaining is not a useful tool, and is antithetical to a care perspective. See, Annette Baier, Trust and Antitrust, 96 Ethics 231, (1986)(hereinafter Baier) (Baier criticizes contractarians because they ignore the costs to relationships from adversarial self-interested bargaining.)
12. “The Gambler.” Song written by Don Schlitz; popularized by singer Kenny Rogers.