What is dominance worth to you?

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Published on 3/22/10

California has new rules as of January 2010. If they are part of an HMO, doctors will be required to treat patients within 10 business days of the patient’s phone call, and patients seeking urgent care that does not require prior authorization must be seen within 48 hours.

Even more incredible, telephone calls to doctors’ offices will have to be returned within 30 minutes, and physicians or other health professionals will have to be available 24 hours a day.

The measures have come in response to a 2002 law that mandated more timely access to medical care, and it took seven years of intense negotiation to agree on the standards.

Can you imagine a state mandating that lawyers respond in a timely manner, or that people have 24-hour access to legal service? Don’t think it’s impossible. Years ago, when I practiced law (before I began coaching and consulting with lawyers), I was very much involved with the California state bar’s campaign to raise the image of lawyers.

I believed most people would think the other side’s attorney was mean-spirited, unethical and unprofessional. But when the bar conducted focus groups, the participants said that it was their lawyer, not opposing counsel, who created the problems, due to poor service, failure to return phone calls, inadequate communication and so on.

One of my great frustrations when I practiced law was opposing counsel who did not take the time to delve into and understand their clients’ cases, such that they could engage in meaningful settlement discussions before trial. As a result, I reluctantly had to tell my clients: “I don’t want to put you through the time and expense of preparing to go to court, but we have no alternative.”

Opposing counsel more often than not seemed to think that kind of tactic put them in a position of dominance in which they were in control of the proceedings. In reality, of course, they were anything but, because they didn’t have control of the facts.

The result was often a settlement that we would strike on the courthouse steps as we headed for trial — a settlement negotiated exactly in line with my understanding of the issues at stake and of the requirements of the legal code.

Why do some lawyers feel the need to be rude and obnoxious to their adversaries, simply out of a need to feel they are in control? Do they truly believe that such conduct is in the best interests of their clients?

On the contrary, such behavior often merely entrenches the opposition further, while substantially increasing unnecessary costs for all concerned.

Professionalism requires neither that we be a doormat nor that we cave in to our adversary’s position. We can stand forthright to advocate our client’s interests without posturing or seeking an image of dominance or making demands that are totally outrageous and beyond the scope of reality.

Remember, more people think that their lawyer is the problem, not opposing counsel. If lawyers do not voluntarily maintain high professional standards, they may find the state imposing standards on them — and that’s not just California dreamin’.

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