How lawyers work - And think

Anderson, John C

The key to receiving sound legal advice as a records manager is to have a relaxed and open relationship with the lawyer designated to handle records management issues. It is important that you feel comfortable, but the comfort must go both ways. The lawyer needs to know a great deal about you and your role, not just the facts of the case you put before him.

Law is an art; often several approaches are equally appropriate whether it is in providing a legal opinion, prescribing a remedy to a particular problem, or monitoring a problem. Factors that a lawyer considers when deciding the approach to take in a particular case include his assessment of your personality, your general philosophy about your role in the corporation and the role of records management in particular, your ability to comprehend and cope with legal issues, and his understanding of the objectives of the corporation. In specific situations your ability to handle numerous legal issues, your understanding of corporate politics, or your vanity may influence a legal opinion.

To establish and maintain a good rapport the two of you have to be honest and frank with each other. Otherwise, you may feel uncomfortable in asking questions and unhappy with the advice because the lawyer did not have sufficient information that might have led to a more appropriate solution for you.

Some lawyers assume "godlike" airs. Your corporation is paying for a specific service. Your lawyer is highly trained and uniquely qualified to provide this service to you and everyone else in the corporation. For this reason, he deserves your respect. In return, you should expect nothing less than a competent, professional job devoid of arrogance and conceit. A thorough, careful evaluation of the legal issues contained in your problem, a clear discussion of the relevant law as it applies to those issues, the consequences of that application and opinion are what you should expect from the lawyer every time you seek an opinion.

Whether a corporation is large or small, or the records issue is operational or administrative, every records management issue has or will potentially have legal consequences. Thus, the records management team will have frequent contact with the lawyer. Of all those within the corporation, the lawyer may be the team's greatest ally or worst enemy. Management and the board of directors will pay greater heed to a brief memo from the lawyer on a records issue than to a long report by you or the team if the lawyer expresses a contrary position. Management and the board ignore a lawyer's opinion at their peril. Records managers do not usually have that kind of influence.

It is important then to establish a positive relationship with the lawyer early in your association. How can this be accomplished when the terms of reference are so varied, where the lawyer may not have any comprehension of the intricacies of records management, and where the records manager may feel inferior to the lawyer?

A LEGAL EDUCATION

A starting point is to understand that the Canadian legal education is presented at law schools that are part of universities. The curriculum is 3 years of thorough academic grilling in the law. Entrants to law school have usually completed an undergraduate degree requiring 3 to 4 years of study. A legal education does not claim to teach a law student everything about the law, nor does it teach the practical and business aspects of becoming a lawyer. However, it develops critical understanding of legal institutions, the scope and purpose of legal rules, and how to solve legal puzzles.

Following the completion of law school, the law student seeks entry to a provincial law society as an articling student. An integral part of the articling year in most common law provinces is the bar admission course composed of lectures, seminars, assignments and exams. Articles is a time of learning, a time of testing. Can the student solve real legal problems? Is the student able to establish a rapport with clients? Does the student recognize when he needs help or guidance from a seasoned lawyer? The case method of instruction used in Canadian law schools requires a law student to read the relevant material before class, with the salient features composed into a case brief. The exercise of briefing a case, learned so thoroughly in law school, remains a feature of the lawyer's tools of his trade long after his admission to the bar. In a very real way, briefing encapsulates the main features of how a lawyer practices law. The brief is a note of the case containing a summary of the facts, the decision and the reason for it. Skill and judgment are required to make a summary of the significant facts of the case. One of a lawyer's more important skills is the ability to pick out the significant facts from the mass of the insignificant ones. The ability to record significant facts and legal principles in a concise and precise manner is an essential tool. These same skills will be utilized as a lawyer listens to you describe your problem, makes notes based on what he has heard, asks questions for further information or clarification, and considers the relevant legal principles prior to orally responding to the issues raised.

LANGUAGE OF THE LAW

It is often thought that a lawyer must learn as many long Latin words as possible. The harder a person is to understand, the better he must be as a lawyer. At least, that is one theory. Actually, a good lawyer expresses himself in a clear, simple, and brief manner. Whether he is arguing a case in court, drafting a contract, or providing oral advice, a lawyer uses language. An ability to translate his meaning effectively into comprehensible words is the mark of a good lawyer. Regardless of the ability of the lawyer to communicate effectively, a records manager must have a basic understanding of legal terminology. The language of litigation, for instance, can be confusing. A party to an action in the court of first instance is called a plaintiff, complainant, petitioner, defendant, or respondent. During the action the parties may be involved in interlocutory proceedings, in which case the party seeking the order is called the applicant and the other is the respondent, regardless of who commenced the action. On appeal, the parties are called appellant and respondent. The case is known by the name of the parties, such as Hill v. Dale. The "v." stands for the Latin word "versus," meaning against. While in Canada and England it is correct to say "Hill against Dale," it is usual to pronounce the name of the case as "Hill and Dale."

A civil action in which the provincial or federal government is a party is not started or defended in the name of that government, but by His or Her Majesty in right of Alberta or Canada, as the case may be. Formal written statements of the parties in a civil action are known as pleadings, the object of which is to define the issues for the court before trial. In Alberta an action is usually started in the Court of Queen's Bench with a statement of claim to which the defendant files a statement of defence or demand of notice. Discovery is used to compel the production of documents and subject the other party to questions under oath.

LATIN PHRASES

The sciences are rife with Latin words and phrases. Law was unable to escape the same fate; the widespread knowledge of Latin among the bench and the bar in the 19th century ensured that language would have a prominent role in legal terminology. A significant number of Latin words and phrases have entered our language from other areas. Many of those in the accompanying sidebar are used by lawyers on a regular basis.

The use of Latin by lawyers appears to be on the decline. Unfortunately, Latin can obscure clear thought by giving a false learned and authoritative appearance to an idea that, if expressed in English, would seem to be trite or wrong. Only when it has a clear meaning is a Latin phrase acceptable.

ANALYSIS OF A LEGAL PROBLEM

The most important element in a legal opinion is clarity. A sentence full of subordinate clauses will threaten to become unmanageable, so a lawyer should not hesitate to use more than one sentence. Legal jargon tends to obscure rather than illuminate. Economic, sociological, psychological and every other sort of jargon have the same effect. If a records manager presents a lawyer with a question, what should be expected is an opinion that sets out the relevant facts, the applicable law, how he thinks the law will apply to the facts, and why. Similarly, familiarity with how a lawyer analyzes a legal problem enables a records manager to focus on the important issues.

In analyzing a legal problem, a lawyer will shun the opportunity to state his conclusion in his first paragraph. The danger is twofold. First, it will cause the lawyer to adopt a defensive posture and undervalue the arguments that lead in the opposite direction. Second, it permits the reader to ignore the strengths and weaknesses of the analysis and to accept the conclusion without understanding its bases.

If a problem contains more than one part, all must be resolved even if the lawyer's conclusion on the first point makes one or more of the others irrelevant. This technique is used not just by law students or lawyers. Several reasons for a decision are frequently given by a judge at the conclusion of an application or trial, in order to show the parties and the Court of Appeal that all issues were considered. Occasionally, the real point of a question you have given the lawyer is not apparent on its face. He may see procedural, evidentiary, or practical aspects which you did not.

PRINCIPAL ROLE OF A LAWYER

The principal role of a lawyer is to help the client achieve effective solutions to his problems by counseling and advocacy. To do so, a lawyer has to know more than the relevant legal principles and the applicable statutes. Counsel needs to know the corporation's circumstances if he is to help shape satisfactory solutions. A corporation may have two problems that involve the same "legal" problem -- say the destruction of records -- but the solution that satisfies one may be unthinkable to the other. An effective lawyer must understand how the corporation's unique goals and needs intertwine with the legal issues.

The understanding is achieved by the lawyer acquiring knowledge in at least two broad areas not directly linked with legal principles, and definitely not taught in law school: (1) knowledge about the industry or activities of the corporation; (2) personal interaction between lawyer and staff. The latter has two components: understanding and action. A lawyer has to be receptive and responsive to a records manager by listening to his problems and concerns with sensitivity, warmth and understanding. By employing these techniques, a lawyer will be able to identify the problems faster, gather relevant information with greater ease, and have better control over the structure of the decision-making process.

There are some typical nonlegal concerns, however, that affect a corporation which a lawyer needs to acknowledge and take into consideration. A corporation's overriding concern is to conclude a transaction in a way that allows its operations to go forward in a timely manner. Consequently, it may be willing to forfeit some legal protections in order to conclude the deal, reduce costs, or conclude the deal to allow it to move on to other ones. Economic consequences may determine the fate of litigation in that legal fees, expert fees, and the time spent by management and staff preparing to testify at discovery or trial may not make financial sense. Time spent preparing for negotiations, legal fees, and the cost of implementing a selected course of action are the economic consequences of a transaction that will influence a client.

Social consequences cannot be ignored. An employee's actions will influence a corporation's future relationship; a person's relationship with senior management could have a similar influence. A decision based on a legal opinion will have psychological consequences. A corporation cannot escape this since its actions and decisions are made by people who may feel cheated by a settlement if some claims are waived, or who may experience anxiety if a matter remains unresolved, or who are elated because the economic power of the corporation produces a deal to its benefit.

All legal solutions produce nonlegal consequences, positive and negative. The nonlegal dimensions of a problem may have greater consequences to the corporation than the legal. Selection of one legal solution may cut off the positive nonlegal consequences of alternative legal solutions. The fact is, nonlegal consequences are difficult to predict. These are not prescribed by a statute or a regulation or a judicial decision, thus forcing a lawyer into forecasting the future. Economic, social and psychological consequences vary considerably according to individual personalities and general economic, political, and social conditions.

The bottom line, something a lawyer must never forget, is that legal consequences are often not the corporation's primary concern. The legal consequences of pursuing a particular course of action may very well be relatively predictable, such as litigation and contract negotiations. But the fact remains that for the corporation, in many situations, the legal concerns are subordinate to the nonlegal ones.

HOW A LAWYER APPROACHES A PROBLEM

In broad terms, a lawyer will adopt one of two approaches to a corporation and its problems. The traditional approach is where the lawyer views the problems primarily in terms of existing doctrinal categories such as contracts, land, torts, securities and so on. Information is important principally to the extent it affects the traditional category into which the lawyer puts the problem.

A traditional lawyer seeks the best legal solutions to a problem without fully exploring how that solution meets the corporation's nonlegal as well as legal concerns. The corporation is not well regarded by a traditionalist. If pressed, this lawyer will admit it is a pain as a client. He sees himself as an expert who can and should determine what is the best solution in a detached and rational manner with minimal input by the corporation. There are three common attributes that a traditionalist tends to impute to a corporation's staff: (1) they lack sophistication; (2) they are too emotionally involved in their problems; (3) they do not adequately consider the potential long term effects or risks of their decisions.

The alternative approach is client-centered or modern, where the lawyer assumes staff is capable of thinking through the complexities of the problem. This approach acknowledges that staff is usually more expert than the lawyer when it comes to the economic, social, psychological and political dimensions of a problem. It also assumes that the lawyer is usually not better able than staff to choose the solutions that satisfactorily balance the legal and nonlegal concerns. An inevitable and natural part of the problem is the emotions of staff; the lawyer has to consider these in the counseling process. Since most corporations seek to achieve legitimate ends through lawful means, a lawyer who has adopted a modern approach will attempt to provide solutions that meet the organization's nonlegal as well as legal concerns.

Please note: both approaches hold fast to the critical importance of legal analysis. Maximum client satisfaction is their ultimate goal.

The modern approach has a number of attributes, the first of which is the lawyer attempts to identify the problem from the corporation's perspective. In doing so, the lawyer will usually consider socio-economic factors, financial needs, the corporation's experience with lawyers and the legal system, a willingness to take risks, a desire to win, a desire to prove a point, a desire to get revenge or establish an harmonious working relationship, anxiety, anger, a desire to avoid conflict, and a willingness to consider long-range and short-term consequences.

A second attribute is the involvement of the records manager by the lawyer in the process of exploring potential solutions. Encouragement of staff by the lawyer to make those decisions likely to have substantial legal or nonlegal impact is a third attribute. There are five reasons behind this:

1. A decision that has a significant impact on a corporation is best based on an evaluation of which solution is most likely to satisfy it.

2. Since a corporation generally has unique values and goals, it is typically in a better position than a lawyer to choose which potential solution is best. The lawyer will provide an assessment of the likely legal and nonlegal consequences of following a potential course of action, but it is up to the corporation to decide if it is willing to run the risks and shoulder the potential cost of adopting a particular course of action.

3. A lawyer bases his advice on the corporation's values.

4. A lawyer acknowledges the feelings of staff and recognizes their importance.

5. Staff are repeatedly reminded that the lawyer wants to help.

Adoption of the client-centered approach encourages staff to participate in the description and resolution of a problem. The advantages of active participation by records management staff are substantial. By embracing legal and nonlegal dimensions of the problem, by using the combined expertise of the lawyer and staff in identifying and evaluating potential solutions, and by encouraging decisions to be made by staff (who are generally better able than a lawyer to assess whether a solution is likely to be satisfactory) the probability of producing a satisfactory resolution is substantially increased. Active participation by staff respects the autonomy of the persons who "own" or have to be shouldered with the problem. Staff does not lose the right to make decisions, which are likely to have a substantial impact on their career, for having sought legal help.

WHAT ABOUT YOU?

Thus far we have discussed the intellectual training a lawyer brings to solving a problem and the two approaches used by lawyers to solve a problem. These alone can be overpowering for a records manager uncomfortable or unused to dealing with counsel. These are not the only problems. Every records manager carries a number of obstructions to an effective dialogue with the lawyer, which are often interrelated. While it may be of little consolation, these obstructions are common in all lawyer/client dialogues.

One is what may be described as the ego threat, where a records manager tends to withhold information perceived as threatening to his self-esteem. The requested information may relate to past or anticipated behavior, and the feelings that a question may arouse can range from mild embarrassment to a strong sense of guilt or shame. If a records manager believes a truthful response will lead the lawyer to evaluate him or his staff negatively, then such a response is a threat. Rather than risk the lawyer's negative evaluation, the records manager may answer falsely or become reluctant to participate in the conversation. Furthermore, the ego threat may not arise because of a fear of the lawyer's personal negative evaluation but because the records manager is afraid certain information may become public.

Second is the case threat. The records manager may believe that revealing information even to the lawyer will hurt the corporation's case. Alternatively, there may be a fear that revealing information will cause the lawyer to believe the case is a poor one or the issues are not important enough to interest him to pursue it strenuously. For instance, in a civil matter the corporation may be asked to identify the location of and produce a particular business document. If someone in the corporation fears the document contains damaging information, the case threat may result in the records manager being instructed either not to reveal its location or not to produce it -- contrary to professional standards.

Role expectations is a third obstruction. These often affect the communication between a lawyer and the records manager. The latter will often enter the lawyer's office with a set of expectations regarding what constitutes appropriate "corporate behavior." Quite often the lawyer may be seen as occupying a position of authority. A records manager may be reluctant to discuss a matter fully and frankly, in the mistaken belief that the lawyer knows what subjects deserve inquiry. If a lawyer does not broach a topic the records manager feels is important, he will assume that the topic was insignificant.

In other cases, a records manager may believe the role of the lawyer is limited to carrying out his wishes, and it is his privilege to speak his mind about any and all topics to the lawyer who is obliged to listen. This scenario has a records manager who sees himself in a position dominant to that of the lawyer. The lawyer's inquiries are perceived as unimportant, so the records manager is not interested in providing a full response.

Fourth may be the etiquette barrier. A records manager may regard information on a particular issue to be appropriate for his peers, but not for those in other groups or roles. Perhaps this stems from a desire not to shock, embarrass, offend or discomfort the listener. In part it reflects his thinking about the effect of information on the listener, not a record manager's thinking about how the listener will view him. A lawyer needs to convey the idea that every topic is open for discussion. If the lawyer does not take the initiative in granting permission to discuss any subject, the records manager affected by the etiquette barrier will usually continue to withhold information.

Trauma is a fifth obstruction that occurs when a records manager is asked to recall an experience that evokes unpleasant memories. Many events cause people to experience fear, anger, humiliation, sadness or loss. When the lawyer asks a records manager to recall such an event, the negative feelings may be overwhelming. Consequently, the records manager may be motivated to avoid thinking and talking about unpleasant past events.

A sixth could be perceived irrelevancy. A records manager may feel nothing will be gained by providing the lawyer with the information he has requested; he does not understand why the information was requested in the first place, so he is reluctant to provide it.

Another possible obstruction is what may be termed "the greater need": the need or desire of the records manager to talk about a subject other than what is of immediate interest to the lawyer. Indications of this appear in the form of the records manager not being able to concentrate on the lawyer's questions. Full and accurate information just is not forthcoming from the person whom the lawyer expects to have the data.

There are a number of factors that encourage a records manager to participate fully in discussions with counsel. The most noticeable is the lawyer who exhibits an empathetic understanding. This gives the records manager feelings of trust and confidence in the lawyer/client relationship; it motivates him to participate fully in conversations. Empathy needs the lawyer to be willing to listen, understand, and not pass judgment. A records manager is almost always emotionally involved in his problems, and will repeatedly express his feelings about what has or is likely to occur.

A second factor can be described as fulfilling expectations. This refers to one's tendency to want to satisfy the perceived expectations of those with whom one interacts. Verbal or nonverbal communication of a lawyer's expectations will often be a catalyst that motivates a records manager to undertake a particular discussion. This is especially useful when the lawyer senses certain obstructions are making him reluctant to provide information.

Every individual often needs attention and recognition from those outside his close circle of family and friends. Each of us enjoys feeling important; we seek the attention and esteem of outsiders. Thus, recognition is a third factor. Recognition may come from something as simple as the lawyer sincerely praising the records manager's cooperation or help.

Regardless of the foregoing, however, is something even more fundamental -- personality. Personality conflicts often interfere, inhibit or terminate lawyer/client communications to some degree. There is no ideal type of personality for a lawyer, or a records manager for that matter. It is not unusual, therefore, to see a lawyer and a records manager create the wrong kind of personal chemistry that prevents the development of a positive working relationship.

It is unreasonable to expect a lawyer to provide an opinion to an insurmountable problem, or a simple, rapid evaluation and solution to a complex problem.

The sidebar on page 25 contains some guidelines regarding the basic rights and responsibilities in a good lawyer/client relationship. They set out a general set of rules that should facilitate lawyer/record manager discussion and result in good rapport. The specifics will not be fully appropriate in every case.

Guidelines are not a substitute for the ingredients of a good lawyer/client relationship; that takes effort from both sides of the desk. A good relationship has to be cultivated with care; nothing can be taken for granted. Above all, openness and full disclosure by you is necessary if you expect frank discussion with the lawyer.

AUTHOR: John C. Anderson is a Barrister and Solicitor with the City of Calgary Law Department where he specializes in litigation. A graduate of the University of Guelph (B.A. (Hons.) '75) and the University of Alberta (M.A. '77), he completed his law degree at Queen's University at Kingston, Ontario.

In addition to dealing with litigation matters, Mr. Anderson serves as general counsel to a large non-profit employees benefit society, and is the solicitor appointed to the records control committee of the City of Calgary. He is a member of ARMA, a telephone tutor in the area of administrative law with Athabasca University, and is engaged with the City Solicitor in the preparation of a course on local government law for the University.

Records Manager's Rights

1. Have as much information as is wanted about the legal issues.

2. Be allowed adequate time for questions and concerns.

3. Have reasonable access to the lawyer.

4. Participate in major decisions that affect your area of responsibility.

5. Know the lawyer's availability and provisions for coverage during illness, vacation, extended discoveries or trials.

6. Determine who other than the lawyer will have access to information about records management.

7. If external counsel has been retained, know in advance the approximate hourly fee and expertise or interest in records management issues.

8. Be seen by the lawyer within a reasonable time of the scheduled appointment.

9. Ask for a change of lawyers if a breakdown in the relationship occurs and have your files transferred to the new lawyer.

Records Manager's Responsibilities

1. Disclose all information relating to the problem to the lawyer.

2. Keep office appointments or cancel well in advance.

3. Plan your visit with the lawyer.

4. Stop the lawyer when you do not understand what he is saying and ask for a simpler explanation.

5. Ask questions.

6. Follow the lawyer's advice and report quickly any negative consequences.

7. Limit intervisit phone calls to the problems covered by 6 above or other agreed-upon matters.

Lawyer's Rights

1. Full disclosure by the records manager of all information pertinent to the issues.

2. Adequate time for a full evaluation and necessary research prior to preparing a legal opinion or commencing an action.

3. Prompt notification of worsening or change in facts that created issue, consequences to advice, or other law-related issues.

4. Act professionally in the best interest of the corporation.

5. Withdraw from the lawyer/client relationship when a personality conflict or emotional involvement exists or if records manager refuses to follow his advice.

6. Efficient use of time.

7. Freedom from client responsibility when not in the office.

Lawyer's Responsibilities

1. Discuss thoroughly with the records manager in non-technical terms the legal issues, research and opinion.

2. Present, when appropriate, alternative generally acceptable approaches to an issue or to reaching an opinion even if the lawyer does not personally accept them.

3. Recommend what the lawyer considers the best approach and explain why.

4. Allow adequate time to answer client questions and discuss client concerns.

5. Provide adequate follow-up and emergency consultation and make the client aware of this.

6. Ask for specialist consultation or a second opinion when uncertain about an opinion.

7. Keep complete client records.

8. Assist in a smooth transition for the client to another lawyer when a relationship has been ended.

9. External counsel must make available to a client a list of his charges for the services he performs.

Definitions of Common Legal Terms

AFFIDAVIT: a written statement made or taken under oath before an officer of the court or other person duly authorized to certify the statement.

ALIAS: A fictitious name used to disguise one's true identity.

BONA FIDE: without fraud or deceit.

CAVEAT EMPTOR: let the buyer beware.

DE FACTO: in reality.

DE MINIMUS NON CURAT LEX: the law does not concern itself with trifles.

EX OFFICIO: by virtue of his office.

EX PARTE: an application made by one party to a proceeding in the absence of the other party.

EX POST FACTO: after the fact.

FACTUM: the written argument submitted by a lawyer to the court.

FIAT: let it be done

HABEAS CORPUS: a procedure for obtaining a judicial determination of the legality of an individual's custody.

IGNORANIA LEGIS NON EXCUSAT: ignorance of the law is no excuse

IN CAMERA: in private.

IN LOCO PARENTIS: in the place of a parent.

INTER ALIA: among other things.

IPSE DIXIT: an assertion the sole authority for which is that the speaker himself has said it.

IPSO FACTO: in and of itself.

LOCUS STANDI: the right of a party to an action to appear and be heard on the question before any tribunal.

MENS REA: mental element or intent required for the commission of a criminal act.

NEMO EST SUPRA LEGIS: nobody is above the law.

NON SEQUITUR: it does not follow.

OBITE DICTUM: an incidental statement.

PER ANNUM: annually.

PER DIEM: daily.

PER SE: by means of itself.

POST MORTEM: after death; an examination of a dead body to ascertain the cause of death.

PRIMA FACIE: at first sight; on the face of it.

QUASI: nearly; almost.

QUID PRO QUO: something for something.

QUORUM: the minimum number of members of a body required to be present in order to transact the business of that body.

RES IPSA LOQUITOR: the thing speaks for itself.

RIGOR MORTIS: rigidity of the muscles after death.

SINE DIE: without time.

STATUS QUO: the conditions that existed.

SUBPOENA: a writ issued under authority of a court to compel the appearance of a witness at a judicial proceeding.

ULTRA VIRES: beyond the power authorized by law for an entity.

Copyright Association of Records Managers and Administrators Inc. Apr 1995
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