Many lawyers entered the profession because of a desire to do good, to help people, to support the rule of law. That’s their motivation.
Once in the workplace, though, their primary incentive is the need to make a living. That space between motive and incentive can create some cognitive dissonance for those lawyers who can’t take on the cases they’d like to tackle, particularly if it’s a question of the would-be client’s inability to pay; or the fear that the return would not justify the investment of the lawyer’s time.
Richard Susskind, in a paper prepared for the CBA’s Legal Futures Initiative, suggests that you can change behaviour by changing the incentive.
One commenter on the Futures website echoes the suggestion that a change in approach is what’s needed.
“We need to be proactive versus reactive – develop our role not as the problem solver once the problem has developed, but by developing pre-emptive strategies. The more information and knowledge we can provide at an earlier stage to people who are just starting to encounter difficulties which could easily escalate, the more we can help reduce or avert the conflict or ensure it does not escalate.”
Susskind suggests that just as preventative medicine can keep incipient health problems from becoming serious, preventative lawyering could keep disputes, if they can’t be avoided altogether, from gaining traction. “The aim here is to discourage disagreements from spiralling and mushrooming, unnecessarily and destructively,” says Susskind.
But he adds, “if lawyers charge by the hour, then it can assuredly be in their interests to prolong rather than pre-empt a dispute.”
The clash between motivation and incentive needn’t make your head explode. Another background paper for the Futures project discussed new business models – including an online dispute resolution system called CyberSettle that is the brainchild of former trial lawyer Charles Bronfman. Clients enter their demands and offers for settlement, and the claim instantly settles when the offer is greater than or equal to the opposing party’s demands. Cybersettle also offers telephone facilitators who can help finalize a settlement. Over the past 10 years CyberSettle has handled more than 200,000 transactions and facilitated more than $1.6 billion in settlements.
CyberSettle isn’t appropriate for every case, but it’s an example of how changing the incentive can change the behaviour – and serve, perhaps, the motivation.