The Simulated Client (1996) by Fran Wasoff R. Emerson Dobash

Author:Fran Wasoff, R. Emerson Dobash [Fran Wasoff, R. Emerson Dobash]
Language: eng
Format: epub
ISBN: 9780815347309
Barnesnoble:
Publisher: Taylor & Francis
Published: 2017-11-21T00:00:00+00:00

Similarities in general style

Negotiation rather than conflict

Another general finding about the interaction observed across all cases reflects the overall approach taken by solicitors to the entire process. Despite popular stereotypes of the combative lawyer spoiling for a fight with the opposition conducted in the public arena of the courtroom, these solicitors overwhelmingly sought a negotiated settlement arrived at outside the court. Clients were encouraged to be ‘reasonable’ in their expectations and approach, and efforts were made to encourage their ex-partners to respond similarly. As can be seen, the language of combat, conflict and fighting is not generally used with respect to the process itself. Ideally, a calm negotiation between solicitors acting on behalf of reasonable clients is the preferred approach. The Jackson and Westcott cases had the greatest potential for conflict and thus best illustrate how solicitors attempt to negotiate rather than encourage further conflict. In none of the cases was a litigious orientation in evidence.

All of the solicitors acting for Robert Jackson indicated that a negotiated settlement was preferable to a decision by the court. They believed the outcome of going to court was too unpredictable to be risked and likely to be worse for Bobby than any outcome reached by negotiation. The following examples are typical:

You won’t come out of it any worse by not going to court. (Jackson 12)

I. I was wondering if I’d had to go to court and stand in the witness box?

S. Only if we don’t manage to reach agreement first. The court is the end of the line. But we must always bear in mind when we’re doing any negotiating that if we can’t reach agreement that’s what we’re going to have to face up to. (Jackson 9)

It is important that such a letter [to Paul] be couched in appropriate terms; we don’t want to write an antagonistic letter. Although solicitors represent clients in an adversarial context, my view is always to try and conciliate. (Aspinall 18)

Reasonableness and reason

Most solicitors considered it part of their task to try to get their client to adopt a reasonable attitude. Rosemary Westcott was advised to be reasonable and realistic about the sale of her large house in the context of negotiating to get the best deal possible for her future security.

It’s very difficult to be precise, but the starting point that I always take and allow the opponent to try and argue down from is that a lady on her own, such as yourself, should be getting a third of your husband’s gross income…. Now, I wouldn’t count on that too firmly right now, because we will be talked down from that. (Westcott 20)

A similar tone is evident for Robert Jackson, a very different character.

I. What do you suggest I do then? [about giving her the house] S. It’s a balance that you’ve got to strike. We don’t want to be mean and make the kids suffer. (Jackson 2)

Generally the courts prefer that the parties themselves can sort it out, rather than turn into a slanging match in court, because its not nice for the children.

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