Originally from Dispute Resolution Journal

Gone are the days when lawyers and clients alike thought of the court as the only forum for resolving disputes. Today, the very definition of “winning” has changed, according to Bennett Picker. The ever-increasing use of ADR has changed clients’ expectations, as well as the role of lawyers. The following piece is based on an address delivered by Picker at the Temple University Law School’s Inaugural Phyllis W. Beck Chair in Law Symposium in November 1999. The theme of the conference was “New Roles, No Rules? Redefining Lawyers’ Work.” Over 150 participants discussed the challenges resulting from new organizational practices, such as consulting in law and accounting firms, and new roles, such as third party neutrals, for which there are no established rules. These new practices and roles raise fundamental questions concerning the “work” and tasks that lawyers perform.

This article is a commentary on the theme “Redefining Lawyers’ Work” from the perspective of one who has substantially redefined his own work over the past decade. Like thousands of lawyers throughout the country, I have seen my role change dramatically in recent years.

My own professional world is the world of dispute resolution. Since the mid-60s, I have been engaged in the adversarial system of litigation. My cases have involved the range of issues that arise in the world of commerce; my expertise is in the process of litigation. Invariably, my cases have involved certain predictable rhythms—the rhythms of developing legal theories, taking discovery, filing dispositive motions, and preparing for trial.

Occasionally, my clients’ matters have been resolved at trial or on appeal. Most controversies, however, have been resolved through the process of settlement.

The skills of a trial lawyer should not be minimized. Indeed, there is no substitute for good case preparation and strong trial skills. Discovery and motion practice remain important tools in litigation. When there is a need to establish a precedent, to file an injunction, or to protect a strategic interest, for example, litigation may well be the best choice. When there is a need for a prompt decision based upon the rights of the parties, the advantages of arbitration should also be considered.

The world of business disputes, however, is changing rapidly. While the adversarial system remains the model for establishing “truth” and rights, our clients’ perspectives have shifted dramatically. Of course, we need to recognize that even a trial cannot establish the facts or truth, but only the “trial facts.” In most business disputes, however, clients now seek solutions that focus as much upon the underlying interests as upon truth or rights. Speed and cost are often the paramount concerns. As a consequence, many of today’s models for resolution are founded as much upon business school models as they are upon law school models.