Q&A: Of Lawyers and Endodontists

An interview with Edward Dauer, Co-Founder and Past-President of the National Center for Preventive Law. Mr. Dauer was interviewed by Steven Keeva

Q: At a recent conference where you and I were on a panel together, you made an analogy that I found quite compelling. It was something that suggested a new way of looking at law practice and the services that lawyers offer their clients. Just to refresh your memory, I'm referring to the endodontist analogy. Can you tell me a little bit about that?

Dauer: Consider a lawyer with a toothache sitting in a dentist's chair. Maybe a little drill and fill would be best, but this endodontist just LOVES to do root canals. After all, this patient really does deserve the very best he can offer, and so . . . Actually, Abraham Maslow made the same point even better when he said, "If all you have is a hammer, everything looks like a nail."

Clients come to lawyers because they feel threatened or wronged or in need of help in achieving some goal. Sometimes they know exactly how they want to pursue their goal, and sometimes they are just experiencing disquiet or hurt or confusion. If the adversary system is what the lawyer knows, there is a risk that the lawyer will translate the client's problem into something for which the adversary system is a useful tool. whether the client's dilemma -- if taken outside that lawyer's frame of reference -- is really a legal problem in need of adversary-system procedures or not. My analogy to the endodontist was meant to say that for a lawyer to commit a client to a course of action just because that is what the lawyer knows or loves to do, is not only less than good lawyering, it may also be outright malpractice.

Q: Are you suggesting that too many lawyers are unaware of options they might offer clients short of litigation, or that they simply lack the relevant skills to implement such options?

Dauer: Both of those, in some cases, and something else too. The something else is the ability to believe that legal processing may not even be relevant to the client's question.

Consider a real case -- a man is the remainder beneficiary of a trust established by his father. The young man's mother is the life income beneficiary. There is a trustee, maybe a bank or some other person. The son feels the trustee has been making investments that yield large current income to the mother, at the expense of preserving the capital for him when he gets the remainder. Most of these kinds of things don't get to lawyers, but some do. What should the lawyer do?

Is this a legal problem? There is law about it to be sure -- trustees must deal fairly between the beneficiaries and may be personally surcharged if they don't. So one approach is to rattle the cage -- namely, make a credible threat about pursuing a claim of legal right -- and see if the trustee can't be prodded into changing the investment mix. "

. . . are we as lawyers at risk of translating whatever we see into a legal vocabulary, without our even knowing that we're doing that?"

Another approach would be (and here I will draw a caricature to make the point), to see if there isn't some way the son could deal with what may be his untoward feelings towards his mother.

This poses three questions for me. First, are we as lawyers at risk of translating whatever we see into a legal vocabulary, without our even knowing that we're doing that? Second, are we sufficiently aware of the range of options -- from the entirely legal through the partially legal to the non-legal -- that might be useful? And third, if we do recognize the first two points, are we competent to explore the alternatives that go further from the comfortably legal? (And a feedback loop -- if the answer to this third question is no, then we might make ourselves less sensitive even to the need.)

I have been training lawyers and watching other people train lawyers for thirty-one years. For the first twenty-five I didn't think much about these things. I wonder how well our products would do on this three-question quiz . . .Some much better than others, I'll bet; but even so, that might be more by instinct than by plan. There is a challenge here, and the rewards could be significant. I wonder if the weight of the actual isn't blocking the potential of the possible.

Q: Assuming you know lawyers who would score well on the three-question quiz, can you describe what it is that they have in common that might underlie their sensitivity in this area?

Dauer: I would like to be able to say it was a good legal education. In most cases today it is probably more the instincts and skills that survive legal education. That's what I mean by our challenge -- we should try to incorporate this into the center of lawyers' training, not rely on it being there or not, randomly at best. Some people are doing this now, but it is not yet at the center of what we do, nor even widely accepted in legal education, where "thinking like a lawyer" is too much of the thinking we train for.

Q: Finally, do you see a connection between an openness to, and an awareness of, the spectrum you describe (from the entirely legal to the non-legal) and satisfaction in law practice?

Dauer: There may be advantages for lawyers as well as clients in widening our counseling horizons in these ways. Legal problems separated from people are pretty dull things; and while adversarial advocacy as a lifestyle might be fun for a few years, I think it would be very satisfying to have a sense of purpose in addition to the sense of sport.

National Center for Preventive Law - www.preventive-law.org