How can your lawyer be your biggest obstacle in getting a satisfactory outcome for your legal challenge?
So, you aren’t a combative type of person. You don’t regularly sue people. The truth is you have only been involved with the legal system a few times in your life. Or not at all.
And then something happens. Maybe you’ve been in a car accident. Or your spouse has sued you for divorce. You get arrested because of a complaint made against you. Maybe somebody sues you for something you said or did (even if it wasn’t intentional). Or someone does something so wrong to you that you decide the only way to rectify the situation is to sue them.
All of a sudden you find yourself thrust into the world of lawsuits. Court dates, mediation, lawyers, hearings, judges, legal complaints, rulings, legal motions, and more.
The attorney’s role
You know that you have a legal problem. You know you need professional help. So, you seek out (and find!) a lawyer who you think, hope, and pray is going to be your savior. And often he or she is just that. A good attorney will not only represent you diligently against the other side, but will also carefully advise you. He or she will tell you about the strengths and weaknesses in your case. And highlight those of the other side.
Your attorney should try to help you reach an agreement that meets all of your needs. He or she will negotiate with the other side, their attorneys, and many times even with the judge. And tell you when you should settle with an agreement, or go through with the whole legal trial. If need be, your attorney will go to the mat representing you in the trial in an attempt to get the best legal outcome you possibly can.
There is also another truth. And that is that sometimes your lawyer is your biggest obstacle to getting an acceptable solution to your legal problem. Why is that? There are many reasons. However, it can be summarized like this: their interests and your interests are not aligned.
Trust in question
This case I’m involved in is a perfect example. (Details have been changed to protect the privacy of those involved.) I represent a relatively well known public figure in Israel, particularly within certain parts of the Anglo community. My client has brought suit against someone who wronged her. (She is not necessarily focused on financial retribution. A non-financial outcome addressing and correcting the injustice done to her would be the best way to settle.) The other side doesn’t know Hebrew well and is financially limited . The attorney who represents the opposing party is also a native English speaker.
When I represent clients in non-family law cases – which is rare – I always do it together with attorneys I trust. Trust which comes from the utmost respect due to their high quality of work. And I am the type of person who enjoys observing the world, people, and how things work. Because of this I came to certain conclusions about the opposing attorney. And I shared them with both my co-counsel and my client. I was convinced that the other lawyer was participating in this case it in order to “ride the coattails” of my client’s prominent name. This lawyer seemed to be the biggest obstacle to an outcome in the best interests of his client.
Damaging representation on the other side
Here are the facts that I observed from the beginning of the lawsuit that supported my claim.
- The other side does not have the financial means to bring and/or respond to the multiple lawsuits involved in this case.
- Even though he is my age, the attorney representing the other side doesn’t have a really well known and established practice. (He kind of reminds me of how I started out back in 1997. So much so that I have in fact referred some contract work to him on occasion – just to try to help him build a track record.)
- Multiple times (5, so far) the other attorney has sought to remove the gag order in this case. He even violated the order himself by presenting pleadings to a national newspaper. Both the newspaper and the attorney’s motions to lift the gag order have failed so far.
- The defendant clearly does not speak Hebrew. He doesn’t understand what is going on around him during hearings and mediation meetings, etc. The attorney always acts as the translator. I’ve closely observed the reactions of the client when his attorney speaks to him and it appears that he is not getting accurate translations.
- Multiple good suggestions for ending the case have been made by a number of judges and mediators, all of which the other attorney has rejected. These suggestions would have (subjectively) met his client’s needs.
I believe part of the reason for the rejections is that the other attorney doesn’t speak or think in terms of “my client”, but rather as “we”. He always addresses the court in terms of “we” and “our”. In other words, the attorney has so over-identified with the client that he cannot differentiate between a good strong legal position, what the client really needs, and what he himself personally wants.
The lawyer causing harm
My conclusion is that the other attorney wants his five minutes of fame by representing somebody against a prominent client. He wants his name in the newspaper – and his client’s interest be damned if settling the case doesn’t fit in with that goal.
The case has been dragging on for quite a while during which time I’ve often shared my position with both my client and my co-counsel. My client believed my observations were correct but my co-counsel definitely did not. That is, until a mediation hearing that took place recently, in front of a senior judge.
The judge was speaking with us and making recommendations. I am usually incredibly polite towards judges. (Really towards most people – I promise – just call me sometime and see for yourself). But I just couldn’t stop myself from interrupting the judge this time. “You keep speaking to the defendant,” I said. “And you don’t even realize that he simply doesn’t understand you. In fact – he thinks he is the plaintiff in this case and doesn’t realize he is the defendant.”
I’ve closely observed this man’s reactions to what third parties are saying during multiple meetings with him and his attorney. His interactions with and reliance upon his attorney during those times has made it clear to me that he simply doesn’t have a clue. Worse yet, I believe that his attorney mistranslates and misconstrues details about what is really going on. I sincerely believe the attorney has been making bad recommendations. This lawyer has been the biggest obstacle to his client’s ability to make good choices and has even led to him having to relocate to a different city.
Treating a client with dignity
I believe these actions are representative of a real problem. In my opinion they are indicative of the systematic lack of respect that people have for each other in general, particularly here in Israel. It is unacceptable for a client participating in a court proceeding not to understand what is going on. And it’s disrespectful for him to be referred to in the third person by his own attorney, during mediation, while he’s sitting right there.
Making sure someone understands what is happening to them is treating them with the dignity they deserve. This is why whenever I have court appearances or meetings with my Anglo clients, I provide three options:
- We order a translator
- I translate for my client myself. (Which is also why I usually have another one of my attorneys present during court hearings so we don’t miss any important details)
- I request that we do things in English. (Most courts won’t do this, however most mediations and settlement conferences can be conducted in English).
In any case, after I spoke up, the judge sent us outside to discuss his proposal. This is when all of my suspicions about the other attorney’s motives were affirmed.
How? You ask.
Because of his response.
The lawyer’s intentions exposed
First of all, it appears that the other attorney also felt that “they” (affirming my theory that he was over identifying with his client) were the plaintiffs and not my client. And so, he asked, “How much are you willing to pay?”
I answered that since my client was the one who had brought suit for damages, his client would have to pay only one shekel and enter into a consent order not to repeat his actions.
He responded, “Well, then at least pay my legal costs. I have been at this case pro-bono for a couple of years and it has been a lot of work”.
We said no – but asked how much he would have requested. The answer was a couple of hundred thousand shekels. Not money for his client. Money for him. Only then would he recommend that his client settle and end everything. Let the client’s interests be damned.
It’s not a leap to conclude that the attorney knew his client should have settled and accepted the judge’s recommendation. But then where would it leave him? Without the 5 minutes of fame, he thought he’d get when he took the case. Without money for all the time he invested in trying to cash in on my client’s prominence.
This is why I work really hard with my clients to make sure that our interests are in alignment. Yes, that may sometimes mean they pay more for the services I and my staff provide. Yes, that means I may sometimes recommend a client move forward with litigation when they want to settle or settle when they want to litigate.
The bottom line is that I always tell people I have to look at myself in the mirror when I get up in the morning. I can only do that if I know that I am a fair person. I just find it morally reprehensible that a lawyer, any lawyer, would run a case based on what is good for him and not what is good for the client.