4.3 Predicting Social, Psychological, and Moral Consequences

In some ways the counseling about the law and the likely outcome in terms of a jury verdict (or BATMA [best alternative to a mutual agreement]) is the easy part. What can get the lawyer cross ways with the client fastest, is for the lawyer to misread and make wrong assumptions about the client’s social relationships, psychological needs, or moral and value interests.

Even the economic consequences of a particular outcome have client specific features to them.

While the lawyer may be able to predict the dollar value of the litigation, usually only the client knows the cash-flow effect, how the litigation affects other sources of income he might have, what the tax effect will be, or how money spent on litigation affects other opportunities the client may have. The client may, however, be seeking economic information. The client may want to know what the jury will award, or what the judge will order by way of a fine. The lawyer, in this case, is giving quasi legal advice, which depends for its legitimacy on the lawyer’s experience in similar matters, or information sources that help predict the economic consequences.

Binder and Price point out, given this economic and legal information, that the client often already possesses superior information concerning the economic consequences of various choices. The client may know better what an order granting him child custody will cost in the way of expenses. Or, the client may know how a product recall will affect his company’s bottom line. For the lawyer to assume he has greater information about economic consequences can lead to embarrassing and bad advice.

The lawyer is not without a role, however. The lawyer’s job in this area is to clarify the client’s thinking about the economic consequences. The client may not be thinking comprehensively about the problem. The client’s emotions or preoccupation with one aspect of the problem may cause him to lose sight of the big picture.

It is important at this stage for the lawyer to be clear with the client about what the lawyer is doing. Without an explanation of the lawyer’s clarifying role, the client could take the lawyer’s questions as disagreement with the client’s choice. If Ms. Addington says “I never want to settle,” and the lawyer responds “Why do you say that?” Ms. Addington may “hear” that her lawyer disagrees with her statement. To protect against being misunderstood, the lawyer must first describe his questioning role, and ask the client to clarify her reasoning in order to help the client to be careful and comprehensive in his thinking. The lawyer can ask questions, for example, “Won’t an agreement between you and Best Homes send an effective message to the market about the quality of your product? What kind of an agreement might do that short of a trial? What is the value of an apology? What if it were public? In other words, “Is your picture of settlements too narrowly drawn?”

4. Ask how the client feels about an option, as well as what he thinks about it. Often what drives an initial emotional, passionate decision to litigate is a fear of the economic effect of the opposition’s behavior. Depending on whether that economic impact is actualized, the passion for the litigation may either increase (where the economic situation becomes more desperate), or decrease (where the supposed costs of the opposition’s behavior never materialize, or other opportunities make the significance of litigation diminish.) The client’s emotional feelings are key to understanding his position.

In addition, the lawyer must realize that the client bears the primary social, psychological, and even moral or religious effects of the litigation. After all, it is the client who must live with having sued and received nothing, or having settled for a promise that has little enforceability and which means little if the market has already been misinformed. Just as it is the client who must decide whether spousal support should be higher, or whether child support should be higher, and risk a custody fight, so the business client must decide whether to fight or take less than their legal right.

In addition, we come full circle to the earlier issue of counseling about morality issues. But now we should have a model in place for discussing these topics. The lawyer should gain access to this information by asking how the client feels about his decisions, as well as how he thinks about them. This will produce a jumble of social, psychological, and moral reasoning. This reasoning needs to be clarified for the benefit of the client, so that he understands the effects of his choices, and comes to “know” what is right for him to do. Just as the medical profession needs to respect the religious patient who doesn’t want a blood transfusion and sets up procedures to identify these patients, lawyers should be on the look out for feelings, beliefs, and attitudes that change the set of solutions that are available to their clients.

It would be wrong for the lawyer to think that he brings no information to the counseling session on social, moral, and psychological issues. The lawyer, as he practices law, should be learning from experience the effects that client’s decisions have on their later level of satisfaction. The lawyer should be able to offer advice based on what he has experienced or been told of the reaction clients may have to trying, dropping, or settling cases. In fact, referring to this experience, or referring to what the lawyer has been told, is key to raising some of the important social and moral issues and helping clients to clarify their thinking. The lawyer might say:

My experience has been (or, in discussions with other legal counselors, I’ve heard) that some clients wished that they hadn’t gone ahead with a hearing. They feel that taking the witness stand made them destroy all chances to reconcile with the other side.

To borrow from the language of decision-making theory, the lawyer facilitates the client’s decision by getting the client to imagine that they have made each decision and are living with the consequences. Part of this technique is to ask the client to assume the role or character of the different persons who will be affected by the client’s decision. The lawyer thereby teaches the client “advanced empathy” or emotional intelligence. The counselor enables the client to “try on” the decision, to see if it feels right and fits from different perspectives.

Binder and Price suggest that the lawyer see his role as both giving and clarifying information. The lawyer’s purpose is not to manipulate the client to reach the decision the lawyer thinks is right for the client. The lawyer primarily gives information about the legal consequences of the client’s various choices, but also helps the client clarify his own values in order to increase chances that he will get maximum satisfaction for his decision.

There are, however a number of problems that develop when lawyers use the client-centered model. These are not necessary problems with the model but they are brought about by the unreflective and rote use of any allegedly objective and neutral informed consent model. A description of some of the more obvious problems that may develop follows.