Does your lawyer offer solutions or just answers?

In part two of evaluating your attorney, I explore something that is often killed off inside the mind of law students as they make their way into the ranks of practicing lawyers: creativity. Like my last post on attorneys who are client-oriented, I again found lots of fodder in the answers given on AVVO to illustrate the point. It shows just how many lawyers suffer from tunnel vision, and fail to offer creative solutions to client problems.

In this case, the person encountered difficulty trying to serve a summons and complaint on an evasive defendant. So he took to the web seeking advice from licensed attorneys and, with the exception of one, their answers were a resounding “NO!” When evaluating a lawyer, you might ask yourself whether the person approaches legal issues literally, or creatively. Don’t just settle for an answer-giver, find a problem-solver.

So let’s compare typical attorney responses with a more unorthodox solution, and then conclude with some suggestions on how to probe your next lawyer’s creative abilities.

Client’s Problem:

The defendent in a civil lawsuit is evading service for the last few weeks. However, I know that she read the lawsuit as she downloaded it from the clerk of court website and attached it to an affidavit she then submitted in another case. Can I consider it served and if she doesn’t answer then proceed with a motion for default judgement?

Interesting and rare situation, no doubt. This person did seem to have some sense of what service of process is (notice), although he couldn’t quite determine how to use that to his benefit or what he should do next. Despite his unique circumstances, difficulties with service of process are common among pro se parties. So how did the lawyers respond?

Lawyer 1:

YOU can but the court won’t. Proper legal service is required.

No solution here, just a short “no.” It’s not only mildly insulting, but unhelpful. It should also be apparent that this client is asking for some help in how to use a specific event to his advantage (the defendant’s affidavit). Maybe attorney number two has something more insightful.

Lawyer 2:

I am afraid not. Knowledge is not device of the summons and complaint. There are alternative. Service methods which a professional process server will know about.

Despite what I can only hope was a botched dictation that wasn’t proofread before posting, his answer was also clearly “no” although he does suggest working with the process server. So at least that’s one possible solution, right? Well, no. What this lawyer seems to have missed in the client’s statement is that the client has already been working with the process server for weeks, so the Lawyer 2’s proposal isn’t really a solution at all. Maybe the third time is the charm . . .

Lawyer 3:

You must gets her actually served. A good process server can get it done. Sometimes it takes extra effort by the server which costs more but it has to be done. Or get a non service and proceed with publication.

Based on these three answers so far, an echo chamber comes to mind. More to the point, what this attorney said doesn’t offer anything new, and doesn’t really help the client. Process servers aren’t private investigators. They use information you give them and if you don’t have good information the process server isn’t going to track down an evasive defendant for you. Furthermore, how many non-lawyers understand what this means: “get a non service and proceed with publication.” Without any citation to a statute or other source, would this poor soul even be able to use the advice this lawyer is giving? Again, her answer is also “no.” OK attorney four, you’re up. Can you offer some better help?

Lawyer 4:

my recommendation is that you get good service on the person that you’re suing.

Ugh. By this point, the client is probably frustrated because that’s exactly what the three prior attorneys said, and he’s already tried for weeks to serve the defendant. So much for original thought. OK, my turn to chime in.

My Answer:

Provided that the defendant herself signed and filed the affidavit, what you could do is prepare a motion and ask the court to deem service of process effective. Motion checklist . . .

I then provide step by step instructions, both for the motion and how to go about securing the client’s second goal: default judgment. (If you want to view the entire post, you can read it on AVVO.) Guess which attorney earned the best answer? Yet despite my offering a solution to the problem, one attorney felt compelled to yell at me, say my answer is wrong, adhere to a strict literal interpretation of the client’s question and, for a fifth time, completely miss the client’s main concern:

Lawyer 5:

The question by the Asker was whether the ASKER could consider the defendant served and move for default if the Asker knows the defendant has read the complaint. The answer to that, as the others have stated is a big fat “NO”.

Yes, I read the other posts before adding my solution, I didn’t need you to SHOUT for me to understand where they (and you) fell short. Whatever his reason for being rude, his snide comment clearly reveals that he (like the first four) completely misunderstands the person’s problem. What they all fail to appreciate is that (1) a client is not an attorney, and (2) because of that, a client may not phrase the question like a lawyer would. No kidding.

In all fairness to the attorney respondents, the literal answer to the client’s question is, in fact, “no.” However, saying no without anything more doesn’t help because it’s missing the most important and valuable component: a real solution. (I don’t consider a proposed solution that was already attempted and failed to be a solution at all.) A complete response should be “no, but . . . ” and then offer at least one new possible way to deal with the problem.

What all of these responses really show is a lack of creativity. Sadly, attorney tunnel vision is all too common, in part because of fear. Fear that if they deviate from a paint-by-numbers approach to creating their legal artwork, then the otherwise predictable final piece will be imperfect, thus risking humiliation in front of peers or, worse yet, by a judge. Never mind that a client might not be served effectively because what they require is original thought. Artists don’t paint by numbers. They seek inspiration from within and from their myriad surroundings. They are observant and experimental. So too should lawyers endeavor to not let fear of the unknown bleach their palette of colorful legal options.

[bctt tweet=”Do not let fear of the unknown bleach a palette of colorful options.” username=”KlemaLaw”]

Finally, the responses also show just how laser-focused attorneys can be on words. Make no mistake, literalism is crucial to a lawyer’s success: interpreting laws, reading cases, and advocating before a court. But it is less important in counseling clients, who are not steeped in legal jargon, procedure, or history. Attorneys must attune their sense of perception to the person seeking their help and not get hung up on the literal words the person uses to express their problem. An attorney should ask himself, “what is the client’s real problem?” and “what solutions are available to remedy that problem?” Or perhaps most importantly, “what new or alternative ways could I achieve that goal?”

How to Evaluate your Attorney’s Creative Ability

Having observed six different responses to a rather straightforward issue, one might wonder how they can vet their own lawyer to determine if they’re working with someone who can understand their problems and propose creative solutions. Here are some ideas to test whether your attorney is a solution-oriented creative type:

1. Use this post as an example. Ask the lawyer if you could consider a defendant served if you could prove the defendant downloaded a copy of the complaint. Do they try to understand the underlying problem or just answer with a no? Do they offer any solution(s), assuming they’ve identified the problem?
2. Ask what they like to do in their free time. Do they have any hobbies, or are they a one dimensional workaholic with narrow focus on the law? Would you consider any of those non-law activities creative or involving imagination?
3. Ask to see a snippet of their written work that incorporates argument by analogy or illustration. Is the passage vivid and engaging or technical and dry?
4. Ask them when was the last time they admitted an error. What was the context? To whom did they confess their error? If it’s anything wishy-washy or silly and not a serious answer, perhaps they’re just giving you lip service. If, on the other hand, they admitted a legitimate mistake then perhaps they’re focused on learning rather than defending or covering up missteps. Humility, honesty, and transparency are characteristics of a counselor you can trust. It also shows fluidity in the attorney’s mind insofar as he/she can adapt to changing information.
5. Ask how many areas of knowledge they have, and to give examples. Cars? Gardening? Software coding? Woodworking? Hunting? Sewing? The more and varied the disciplines your lawyer knows, the more likely they can draw upon that broader body of knowledge to create solutions for clients. This has also been referred to as a “T-shaped” person, “renaissance man,” or polymath. Perhaps they like to watch (or have even been on) the T.V. quiz show Jeopardy!
6. Is the attorney part of a large firm or smaller more nimble firm? An inflexible bureaucratic structure may prevent bold and creative solutions. Larger legal institutions tend to be conservative and slow to adopt new tools and technologies.
7. What was the last new experience the attorney had? Did it have anything to do with the law? Your goal here is to explore how intellectually curious the lawyer is, and test their level of acceptance to new ideas.

In the end, trust your instinct. There are plenty of lawyers around, and anyone you work with should offer at least one possible solution to any given legal problem, unless they say it’s illegal or unethical. Don’t just settle for an answer-giver, find a problem-solver.

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