Jim's point of "everything in family law is a surprise" is not likely a
really powerful defence to a malpractice suit. Sure, judges do wacky
stuff. Sure they have lots of discretion. That doesn't mean we can
shrug when faced with client's real expectations for guidance as to what
the law might produce for them. We have to provide an accurate
assessment of range of possible results, and identify and even try to
quantify risks of particular outcomes, etc. To do less is to do a
disservice to the client who is paying top dollar for your ability to
help them figure out "this family law thing", and to pay lipservice to
"its all a crapshoot" is close to encouraging disrepect for the
administration of justice. I think the CP law community is rightly able
to trash the inhuman litigation process and its focus on "lose-lose"
solutions, etc., but I would think we are not here to trash the law
itself as a tool of social order. Rules are not inherently bad - they
guide us. In our perfect collaborative utopia, they do not BIND us, but
they are useful to guide us as to what society's rough expectations are.
It is a way to tap into collective historical experience, which we can
then fully reject if the circumstances of the particular matter call for
a different solution.
By "accuracy" I didn't mean that one can "crystal ball" exactly what
will happen with any particular issue via the law model - by accurate I
mean I have the experience such that I can confidently advise the client
about, for example, how spousal support awards are calculated in Ontario
and therefore asking the right questions, getting good data, etc. I can
give them a highly probable range that they can use to assess their own
desires and interests so as to be able to bargain effectively.
Don't get me wrong - I am not here (especially in this forum!) to defend
the legal model, but an element of effective collaboration is being able
to orient the client to their actual legal rights as part of assisting
them explore the universe of solution options available to them.
Perhaps our reticence with newbies comes from an ardent desire to see CP
succeed. We are right to be very worried about the perception of our
fragile "new creation". I think that drives thinking like mine and
Pauline's is that it is important that we get it right - that CP build a
reputation of giving clients the good stuff that they get from the
litigation community - high quality legal advice - without the bad stuff
(fear, coercion, unpredictability, killer costs, etc.) and doing it via
a fantastically flexible custom process that supports the client all the
way along. That is a tall order. It is hard to do this well - let's
acknowledge that.
A young and energetic collaborator that brings great negotiation energy
and skill to the table, and brings about an agreement, but that
agreement isn't backed up by solid legal advice, has delivered an
inferior product that might be set asunder by someone with bargain
remorse later. That would be something that would tend to downgrade the
reputation of CP. It might build a negative rep. - that clients are
being assisted in abandoning legal rights unknowingly to their ultimate
detriment.
I'd hate to then have the legal community at large think that. Bad news
travels faster than good.
I get the argument that people should be free to choose inexperienced
collaborators, just as they are free to choose inexperienced litigators.
And I agree that the collaborative envelope is a safer place for that
lawyer to make mistakes, because not only would they have their own
collaborative community to fall back on, but I would hope their
collaborative colleague in that very case would counsel them as to any
missteps on the law. Still makes me nervous.
Revolutions are born, and revolutions can die. We have to be careful.
Well, I must leave this perch and go and see if I can find some worms
for the baby birds back at the nest.
Cheers, Chris
Christopher Arnold . Partner . (613) 722-1500 ext. 228
Mann & Partners, LLP . Suite 612, 1600 Scott Street . Ottawa . Ontario .
Canada . K1Y 4N7 . Fax: (613) 722-7677
<http://www.mannlawyers.com/> www.mannlawyers.com
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-----Original Message-----
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On
Behalf Of JimGuyLaw@xxxxxxx
Sent: Monday, June 05, 2006 4:45 PM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: [CollabLaw] Five-year practice requirement?
In a message dated 6/5/2006 3:35:47 P.M. Central Standard Time,
chris@xxxxxxxxxxxxxxx writes:
client's pay us well and rightly expect us to be
accurate
I quite agree, if one could be accurate. And, quite possibly, in your
jurisdiction, one can. In mine, however, where I have been litigating
these matters
off and on for thirty-five years, what I see these days is the Court
judging
by the seat of its collective pants. I know that divorce law is
supposed to
be equitable in nature, but that does not even begin to allow for the
inconsistency of the judgments we are getting here and now. I fail how
it would be
possible for even the wildest guess a trained law student might make in
this
area to outperform in uncertainty the result one might get from a trial.
Therefore, I fail to see what might be learned except that everything in
Family
Law is a surprise, and any advice given may well be advice regretted in
the face
of a litigated result.
Jim Guy, Lawyer
The Century 21 Building in Old Town
216 North Mosley
Wichita, Kansas 67202-0806
(316) 838-0805, FAX 838-7873
e-mail: JimGuyLaw@xxxxxxx
This electronic message transmission contains information from the law
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property of the sender or intended recipient. If you are not the
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recipient, please be aware that any dissemination, distribution or
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of this communication is strictly prohibited. If you have received this
electronic transmission in error, please notify us by telephone
(316-838-0805), or
by electronic mail (by reply to the sender) and promptly destroy the
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transmission.
Thank you for your assistance.
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