Category Archives: Innovations in the Practice of Law

Triumph of the commons: a new role for attorneys in "sharing law"

The 21st century has wrought big change in the way communities constitute themselves. Digital technology has produced web sites and tools that enable people to transact business, form coalitions, find jobs, effect political change, connect with resources, and disseminate knowledge, news, and inventions, all from a cell phone or laptop.

The economic challenges of the last several years have also pushed people to rethink the nature of their commercial transactions, seeking new ways to do business and make economies flourish, while concerns about the environment have spurred the development of initiatives and technologies to recycle, share, and conserve resources.

Covering the story of this brave new world, where people strive together to work, run businesses, raise families, and improve neighborhoods is Shareable, a nonprofit online magazine dedicated to spreading the word about the triumph (not the tragedy) of the commons.

What place for lawyers in these creative economies? According to Shareable, in the “Birth of Sharing Law”, innovative, forward-thinking lawyers will be busy:

Contrary to what we see on lawyer TV shows, around half of lawyers primarily work as transactional lawyers, not courtroom litigators. Transactional lawyers advise on, negotiate, and structure the contracts that govern business deals, real estate transfers, loans, mergers, securities, insurance, and so on.

The evolving nature of our transactions has created the need for a new area of law practice. We are entering an age of innovative transactions, collaborative transactions, crowd transactions, micro-transactions, sharing transactions – transactions that the legal field hasn’t caught up with, like: Bartering. Sharing. Cooperatives. Buying clubs. Community currencies. Time banks. Microlending. Crowdsourcing. Crowdfunding. Open source. Community supported agriculture. Fair trade. Consensus decision-making. Cohousing. Intentional Communities. Community Gardens. Copyleft.

To read more about Shareable‘s vision for “community transactional law”, and the ways in which the role of lawyer, the meaning of “client”, and the focus of legal education may be altered, click here. The next new frontier in collaborative law may be about to open.

Testing for negotiation skills, creativity: an LSAT for the 21st century

An LSAT for the 21st century

In the U.S., thousands of graduate school applicants sit each year for one or more of the standardized tests that most universities require as part of their admissions process.  One of them, the Law School Admission Test, known as the LSAT, measures the reading comprehension and verbal reasoning skills of hopeful attorneys-to-be — yielding results that purport to predict success in law school and in practice later.

But does the LSAT in fact measure the right stuff?

Researchers at the UC-Berkeley School of Law think that they have identified tests more accurate than the LSAT, according to a report by Petra Pasternak published at, “Berkeley Wants Research on LSAT Alternatives to Go National“. According to Pasternak,

Roughly 10 years have passed since Berkeley law professor Marjorie Shultz set out to find a more complete way to test students for admission to law school. This fall, she and Berkeley psychology professor Sheldon Zedeck have wrapped up their findings in a 100-page report, now available on the law school’s Web site. They say the LSAT, with its focus on cognitive skills, does not measure for skills such as creativity, negotiation, problem-solving or stress management, but that they have found promising new and existing tests from the employment context that do…

Jeffrey Brand, dean of the University of San Francisco School of Law, said that the research is welcome. Brand…said that passing the bar exam is clearly important.

“But we also need lawyers with the kind of skill sets that the world needs — like empathy, persuasiveness and the willingness to have the courage to do the right thing — which the LSAT does not measure,” Brand said.

Proponents of alternatives to the LSAT will no doubt have tough negotiations ahead of them as they endeavor to persuade the legal community of the merits of utilizing other measurement tools to predict effectiveness in law school and beyond. I wish them success: the legal profession and the public it serves can only benefit from this closer inquiry into what it takes to be an effective lawyer today.

New issue of The Complete Lawyer and its ADR column, The Human Factor, now available

The Complete Lawyer

Now available online is the latest edition of The Complete Lawyer, a web-based magazine focusing on quality of life and career satisfaction for attorneys, along with its special ADR column, “The Human Factor“. This issue of The Complete Lawyer discusses “The Brave New World of Associates.”  Articles include “Jettison the Myth of Individualism“, reflecting on the importance of building social capital.

The Human Factor” focuses on ADR from the perspective of four attorneys who mediate – me and three colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

After writing the first three columns together, each of us will now solo, starting with Gini Nelson, who takes this issue of “The Human Factor” to discuss how “Joining A New Firm Is Like Traveling To A Foreign Country“. Then it’ll be my turn for the following issue.

The Complete Lawyer is published by Don Hutcheson, who has been an enthusiastic supporter of “The Human Factor” from the beginning. Thanks, Don, for being such a good friend to the four of us.

A kinder, gentler lawyer: shows the sensitive side of the practice of law

Cuttingedgelaw.comSomeone called me the other day to ask me to recommend them a lawyer. After describing to me the issues at stake, they said, “I want a real pitbull — someone who’ll go straight for the jugular and show no mercy.”

Believe me, a pitbull was not what this particular case warranted. It’s too bad that so many people think that’s what they need in a lawyer. Not a principled defender of justice, nor a skilled negotiator who can broker a winning deal, nor a charismatic leader who can influence others. Thanks to the media, which rarely depict this side of lawyering, most people fail to see, let alone celebrate, the art in the lawyer’s craft.

J. Kim Wright, who describes herself as a “pioneer, catalyst and leader in a new paradigm of law”, has launched, an online community and magazine that seeks to show lawyers in a very different light:

Rather than focusing on the latest litigation victories and defeats, we will focus on the roles of lawyers as healers, peacemakers, problem-solvers, and champions for justice. We aren’t looking for the “Super Lawyers” who made $6MM on moving money between two behemoth corporations over a technicality but rather the lawyer who healed a conflict between two parents in a custody dispute or a lawyer who helped a murderer come face to face with the family of his victim and give them the gift of a sincere apology. We’re here to support the explorations and promote the most workable and inspiring options for the legal system. Imagine the legal system as a resource for creating whole, vibrant, loving communities? If we transform our practices, how do we reach clients? How do we earn a living on healing and peace-making when the world is used to viewing lawyers as a polarizing force? is still under construction, so not all links on the site are operational. In the meantime, however, you can view video interviews with lawyers who are themselves leaders in the “new paradigm of law”.

A big hat tip to Stephanie West Allen for alerting readers to the launch of this site and Wright’s work.

Latest issue of The Complete Lawyer – and the ADR column "Human Factor" – now available

The Complete LawyerThe latest issue of The Complete Lawyer, an online journal focusing on quality of life and career satisfaction for attorneys, is now available — and along with it, its special ADR column, “The Human Factor“. This issue of The Complete Lawyer asks, “What’s your exit strategy?” and looks at how best to plan financially and emotionally for retirement.

The Human Factor“ focuses on ADR from the perspective of four attorneys who mediate – me and my three extraordinary colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

This time in “The Human Factor” the four of us discuss “What we have learned from mediation and negotiation that can have very broad application in your life and work“.

The Complete Lawyer is published by Don Hutcheson, to whom the four of us owe a debt of gratitude for allowing us a forum for our ideas. Thanks, Don.

What About Clients? No, What About Paris?

A rose by any other name as What About Clients adopts a new nom de plumeBrevity, said the Bard, is the soul of wit.

If you seek proof of the truth of that maxim, then look no further than What About Clients?, one of the very best of the legal blogs. Irreverent, edgy, and smart, with a keen international focus, What About Clients? has long made the case that in a flat world, savvy American lawyers eager to retain their competitive edge must look beyond U.S. borders and across the seas for news, ideas, and business.

Practicing what it preaches, WAC? recently assumed a new name (What About Paris?) and a new slogan (“News and ideas on clients, customers, business and law around the globe”). What remains unchanged of course are the crisp writing, dangerously sharp ideas, and the extensive list of international blogs in the site’s sidebars.

Part 2 of "The Human Factor" ADR column now available at Complete Lawyer

The Complete LawyerA Sound Mind in a Sound Body” is the theme of the latest issue of The Complete Lawyer, an online magazine covering professional development, quality of life, and career issues for attorneys published by Don Hutcheson. It explores ways to reduce stress; a look at nontraditional careers; and the link between mind and body for better quality of life.

The last issue of The Complete Lawyer introduced “The Human Factor“, a column focusing on ADR from the perspective of four attorneys who mediate – me and three talented colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog.

In our latest Human Factor column, the four of us describe the different paths that led us from law school to the practice of mediation.

The Complete Lawyer adds ADR column, "The Human Factor", written by four mediators

The Human Factor a new column on ADR at The Complete LawyerThe Complete Lawyer — an online magazine covering professional development, quality of life, and career issues for attorneys published by Don Hutcheson — has added an ADR column, “The Human Factor“.

Written by me and three smart, savvy women I am honored to call my friends — Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog — “The Human Factor” seeks to make ADR relevant to the work of lawyers today. The inspiration for the title of our column comes from pioneering legal reformer Dean Roscoe Pound, whose work presaged the rise of the alternative dispute resolution movement:

A century ago, Dean Roscoe Pound exhorted the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern,” “putting the human factor in the central place.”

Located in different parts of the U.S., each of us offers a unique way of looking at ADR and its connection to law and justice, in particular what that connection means for the human factor — the individuals whose lives the law affects. In our first column, we introduce ourselves to readers and let them know what to expect from future issues.

Besides “The Human Factor”, there’s plenty more worth reading at the latest issue of The Complete Lawyer, which focuses on the question, “What Do Women Lawyers Really Want?” (I’m one, and I’m still not sure myself.) Find out the answers by visiting The Complete Lawyer now.

Cybersettle makes the case for resolving disputes online

Future ahead at CybersettleRichard Susskind, digital technology expert and legal visionary, once said, “The best way to predict the future is to invent it.”

That’s exactly what Charles Brofman did. He invented the future.

Brofman, a former trial lawyer, is the co-founder of Cybersettle, the world’s leading online claim settlement company. Cybersettle makes use of what is known as online dispute resolution (ODR), a kind of dispute resolution process that utilizes digital technology to settle claims quickly and economically.

In 1996, Brofman had the foresight and rare common sense to create Cybersettle. What sparked this vision? A situation familiar to any trial attorney or mediator who has wrestled with a case that just won’t settle:

Cybersettle grew out of a 1995 encounter between seasoned trial attorneys Charles Brofman and James Burchetta who were representing opposing sides in attempting to settle an insurance claim. Jim, who in this case was representing the plaintiff, had demanded tens of thousands of dollars more than the amount Charlie, the defense counsel, was willing to offer. Both parties were well aware of what amount would eventually settle this case, but neither wanted to compromise his bargaining position – so on to court they went.

In the courthouse, they agreed to secretly write down their bottom line numbers and hand them to a court clerk, who was instructed to give them a “thumbs-up” if they were within a few thousand dollars of each other. If the case didn’t settle, the clerk would destroy the papers and never reveal the figures. He flashed a “thumbs-up.” The amounts were within $1,000 of each other. They split the difference and settled the case within minutes.

Cybersettle was thus born of the desire to help lawyers and others accomplish what sometimes can feel like the impossible: get cases to settle fast and fairly.

So, how does Cybersettle work?

Cybersettle utilizes a patented automated, online, double-blind bid dispute resolution system which allows disputants to resolve claims quickly and confidentially. Optional telephone facilitation is also available when necessary to smooth out communication difficulties and keep settlement negotiations on track, or when parties are close and can benefit from the help of a skilled neutral.

The online service generates high-speed settlements by matching offers and demands. Once the process gets underway, disputants have three opportunities or rounds to settle a claim. One demand or offer is entered for each round; Cybersettle instantly compares the demands to the opposition’s corresponding offer. When the offer is greater than or equal to the opposition’s demand, the claim instantly settles.

Who uses Cybersettle? And why?

Cybersettle has many satisfied customers, as its case studies testify, and has assisted in almost 200,000 transactions, representing $1,457,299,751 in settlements to date, an impressive figure.

Among those who use Cybersettle are attorneys and other legal professionals; insurance carriers and claims professionals; third-party administrators and self-insureds; and government, including municipalities.

But why would they use Cybersettle?

New York City has 11.6 million reasons why. That’s the number of dollars the City saved during its first year using Cybersettle. Faced with a backlog of 40,000 cases, the City needed to take drastic steps. The first city to integrate Cybersettle into its settlement process, New York was able to settle 66% of its cases within 30 days, reduce its backlog significantly, and realize significant cost savings.

For its clients, Cybersettle is virtually a no-risk proposition. The double-blind bidding means that parties can submit their walk-away numbers without compromising their position. This means that there are none of the worries associated with making first offers or other pitfalls of face-to-face negotiation. Most importantly, parties don’t pay unless they settle. I’ll say that again. Parties don’t pay unless they settle. What’s not to love about a system like that?

Speed and 24/7 access — much like an ATM or your favorite convenience store — are other qualities that make Cybersettle so appealing. Trained phone facilitators are also available during normal business hours if parties need the extra nudge to cross the finish line.

Curious to find out how it works? You can take Cybersettle for a test drive.

Final thoughts

Incidentally, Brofman’s talent for predicting the future is not limited to digital technology. Not only did he see the future in ODR, but on a phone call with him back in January, he correctly predicted that the New England Patriots would play the New York Giants in the Super Bowl and that the Giants would win. This is one guy who’s skilled at looking ahead.

Interested in finding out more about Cybersettle? Visit Cybersettle’s web site. And if you’d like to learn more about the brave new world of technology-mediated dispute resolution, read “Settling It On the Web“, an article from the ABA Journal which provides an excellent introduction to ODR.

Collaborative law: attorneys who mediate and negotiate, not litigate

negotiating through collaborative lawAs family lawyer Diana Skaggs recently alerted readers, the nation’s leading divorce lawyers are finding more cases settled before trial. This trend in favor of negotiation over litigation in divorce may in part be attributable to the growing popularity of alternatives such as mediation and collaborative law which emphasize mutual gains, joint problem solving, and better communication between disputants.

In “Lawyers who mediate, not litigate: Collaborative law doesn’t have to be an oxymoron“, a column in today’s Christian Science Monitor, Boston-based collaborative lawyer David Hoffman traces the roots of collaborative law, describes its benefits, and assesses its risks. Its benefits are two-fold: for the clients themselves, who can achieve creative resolutions, as well as for the legal profession itself, since Hoffman sees collaborative law as a way to regain ebbing public confidence. Hoffman does so in the context of the ethics opinion recently issued by the American Bar Association upholding the use of collaborative law agreements by lawyers–an opinion which put to rest concerns among collaborative lawyers raised by a controversial advisory opinion by the Colorado Bar Association which declared collaborative law unethical per se earlier this year.

Although collaborative law — and other nonadversarial processes like mediation — may not be for everyone, many divorcing couples are electing these as a way to avoid the costs — monetary and otherwise — that litigation can produce.