Law in Society: Lawyer’s acknowledgement of Claimant’s Motivation & Antecedents of Disputes By: Devaang Savla

The Author, Devaang Savla is currently pursuing his masters in law from University of Oxford,UK.

Introduction

The relationship between a lawyer and his client is a fiduciary one, where the litigant expects his representor to procure him justice in a way he thinks he deserves. The desired outcome is sabotaged in many ways by the lawyer himself as he fails to inquire into the antecedents and motivation of the dispute- does that lead to pursuit of different interests? It is open to debate whether this is one of the responsibilities of a lawyer or is entirely a false proposition in concept. It would be interesting to consider whether if such an inquiry is made it leads to a higher level of satisfaction for a client, irrespective of a favourable outcome. It is a fundamental aspect of litigation that a litigant has the right to pursue his interested outcome and not the one designed by his lawyer, so that justice is seen and felt to be done. Does legal translation of dispute disintegrate the motivation behind it? This essay examines such introspecting questions from the perspective of a lawyer-client interaction.

Lawyer-client interaction

Predominantly, lawyers perceive their clients as customers who avail their professional services for a favourable judicial decision. At the outset, it is an extremely mechanical exercise with minimum relevance to the disputant’s view of the actual crisis. It might be so because lawyers expect, assume and gauge that client satisfaction is directly proportional to the outcome of a particular case. It is a preconceived notion that clients are always satisfied if they win and dis-satisfied if they lose a particular case. A lawyer requires ‘relevant’ facts and evidence from the litigant which he then fits into ‘pleadings’ according to his own understanding of law and judicial processes[1], where the primary objective is to interpret the dispute in such a manner that it makes an arguable case leading to the best possible outcome, irrespective of the perception of the litigant. Hence, there seems to be no need of gathering information about the disputant’s motivation or antecedents of the dispute. In a way, a lawyer replaces the interest of the client with his own[2]. 

If we were to run through a basic lawyer-client interaction it will demonstrate that lawyers have a very different understanding of their role in the entire judicial mechanism of seeking justice. When a client approaches a lawyer, he is asked to narrate the dispute and produce documents in support of his claim, while the lawyer is simply trying to fit the same in legal narrative juggling through papers identifying admissible evidences. Later, the client is asked to deposit the legal fee and assured to be contacted as and when required. In most proximity, the lawyer would now expect him in his chamber when further documentation is required or process-payments are to be paid or straight after the final verdict in the case. They safely presume that clients do not understand the nuances of law and functioning of courts. Hence, a lawyer replaces the litigant and starts to manage the dispute in a way he has been trained to do in a Law School. Thus, this leaves little or no space for the need to consider the motivation or antecedent of the dispute. In a lawyer’s mind, such social tenets do not hold much importance and neither they have been trained to approach a dispute in such light.

Transformation of Dispute by Lawyers

An unexamined approach might suggest that client satisfaction is dependent upon the outcome of a case. However, in majority of cases this may not be true for the litigant[3] and lawyers do perceive this, but rarely care to introspect. A lawyer-client interaction forms an essential part of procedural justice and lawyers often tend to betray their clients by failing to identify their motivation and the actual remedy sought[4]. Further, such interaction enables the pleader to better approach the dispute in context of what aspect of the facts and circumstances are actually being challenged by the litigant. The dispute in the mind of a lawyer and the one of the disputant are often apart in reality.

I distinctly remember drafting a case[5] where a government servant was terminated from his post on false charges, which was allegedly a result of a conspiracy against him as he had refused to sanction government land at throw-away prices to local mafias. He was soon to retire and the litigation was for his self-respect, honour and pride. On the other hand, our chamber’s approach was to identify the fallacy in charges leveled against him and challenge the termination order without delving much into the aspect of conspiracy. For him the mental trauma of shame of being labelled as a dishonest officer was the motivating factor, which was completely disregarded by us. If joblessness would have been the issue, he could have easily started any business or joined a private company to fend his livelihood. For him the real controversy was never put before the court.

Felstiner, Abel and Sarat[6] discuss that legal disputes are not an everyday affair and have a considerable background that finally culminates into legal action. They explain these transformational stages of a dispute as naming, blaming and claiming. There may be injurious experiences that a person does not perceive to be injurious even when there is an available legal remedy. A dispute arises out of a perceived injurious experience that the disputant desires to remedy. This identification of a perceived injurious experience is termed by them as ‘naming’. When such identification is attached to an individual or legal entity making it a grievance is termed by them as ‘blaming’ and finally upon voicing the grievance to the identified person as responsible for the injury is said to be ‘claiming’. Claiming in exceptional cases might resolve the dispute. Otherwise, if the disputant does not decide to ‘lump it’[7] (drop the claim), it leads to the entry of a lawyer or legal expert. One of the many important aspects of studying the stages of transformation of disputes is that it allows critical examination of how lawyers transform the dispute.  

Lawyers are often unaware that they reappraise and recreate the dispute, as it is taken for granted that it is part of their job. Further, they create needs that they adopt to satisfy.[8] Considering the Indian Sub-continent perspective, a lawyer dealing with a divorce petition on behalf of the wife would draft the pleadings in such a manner that it would end up establishing criminal charges than matrimonial grounds of divorce. Grounds for divorce would encompass aspects like cruelty, domestic violence, demand for dowry and sometimes attempt to murder, all being of criminal nature, revisiting the entire matrimonial dispute. The pragmatic reason could be adultery by the husband or simply that she was forced into marriage which she now desires to escape from, which is a different stand point altogether than ones actually pleaded before the court. It is least deliberated what trauma the woman is going through and why actually she is heading for a divorce. The objective is to make a case which will produce the desired end result, being a favourable verdict, in eyes of the lawyer.

Sometimes lawyers may deny maintainability of claims either because they are non-profitable litigations[9] to them or because the legal process is too cumbersome in comparison to the monetary-valuation of the claim. Lawyers also tend to settle for an easy remedy being offered by the judge that enforcing the disputant’s desired claim, especially in low-value civil cases. A good example would be criminal appeals; where a convict has already spent maximum part of his sentence, during the pendency of his appeal. Investigating into credible merits of the appeal, judges tend to offer a reduced term and release the convict before the completion of the sentence awarded by the trial court. This makes it easy both for the judge and the lawyer. Now the released convict will have to live with the tag of a convict for the remaining part of his life, even when his motivation of fighting the appeal was to prove his innocence.

Need of identification: Litigant’s motivation & Antecedents of Dispute

A lawyer is positioned as a fulcrum between the client and the judicial institution and his placement will determine the nature of fairness and justiciability. The idea is to not complicate[10] or reframe the existing dispute but to pursue the interest of the client as he sees it, so that irrespective of the outcome he is satisfied that he was heard and was able to place what was important to him. As part of procedural justice[11], judges endeavour to provide reasoning to uphold or reject the claim set up by the claimant; which the lawyer must translate to the client. This satisfaction will not only ensure compliance of judicial awards but also enhance respect and trust in such institutions of justice. Much of this would be possible if lawyers make effort to understand motivation and antecedents of disputes while dealing with clients. Further, there are empirical studies and findings[12] that prove the discusses notion that clients repeatedly are unable to pursue their claims for various reasons.

Now, considering the flip side of the earlier case of the government servant being terminated as a result of a conspiracy. In utmost probability, drafting the case the way it was desired by the client could have led to instant dismissal but would have better satisfied the client’s voice or alternatively an arguable legal translation was made but led to lower satisfaction. It is difficult to strike a balance in this regard. Cases are drafted by lawyers keeping in mind the Bench, presiding officer, managing facts and merits to increase probability of admission of the case are few considerations amongst many. Admittedly, allocation of time and attention to drafting is also dependent upon the paying capacity of the client, multiplicity of work, nature of the case and client, legal importance etcetera. Given such complications, if lawyers could mildly turn their attention towards sociology of dispute resolution, it could work in better interest of disputants.

Final Comments

The idea is to reach common-grounds; identification of motivation and client’s perspective of the dispute; including client’s needs (remedy) in pleadings; not compromising client’s interest before the judge; interactively explaining to the client, interim orders and final outcome of the litigation are certain ways and methods by which legitimate and effect justice can be delivered if a lawyer could focus upon the antecedents of disputes and the motivations of those that pursue them. 

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