The American Inns of Court and the Collaborative Process: Shared Ideals of Professionalism and Civility

The Bencher—September/October 2018

By Joryn Jenkins, Esquire

You know that the American Inns of Court were conceived to address and, indeed, to combat, the deterioration in civility and professionalism of attorneys. Ethics and respect among us have plummeted as more and more lawyers have entered our profession and fewer and fewer of us know each other personally. In fact, there are four times more U.S. lawyers per person now than there were in 1958. I’ve been practicing long enough—since 1980—that I’ve actually witnessed the downward spiral in my own lifetime. It’s easier to insult people you don’t know and to picture them as boogeymen instead of as real people just like you, isn’t it?

And, as we all know, the public is all too aware of this decline in our civility.

The Inns were created to support in a very hands-on way the aspirations of professionalism, ethics, civility, and mentorship, all of which advance the cause of excellence in the practice of law. We break bread together so that we know, like, and trust each other; we are less likely to offend or to be offended by those whom we respect.

I was on the leading edge of this crusade when I formed my first Inn in 1988, eight years after the first Inn in the country was organized.

Since then, I’ve witnessed the Inn idea seize the hearts and minds of lawyers whom I know and respect; for whom the practice of law is an art, not a job; and who have often been troubled and even personally distressed by the deterioration of civility in our profession. I’ve shared with those lawyers how to organize their own Inns of Court and how to keep them healthy and vibrant. I’ve observed the Inn concept spread across the United States and become a living, breathing institution, 38 years old this year. I’ve contributed to that cause, as the progenitor of the first regional counsel of Inns, as the first editor of The Bencher, and as a member of the American Inns of Court Board of Trustees, among other things.

While the civility of the profession as a whole worsened, divorce attorneys in particular were gaining reputations as “pit bulls.” As a result, families suffered while they lined their lawyers’ pockets by cashing out their retirements and their children’s college funds to pay for what was too often termed “frivolous” litigation by the judges ultimately deciding their cases. Why? Because people in divorce often suffer the worst stress of their lives and at the same time assume their lawyers know best how to alleviate their pain. Wrong!

There had to be a better way, and luckily, we finally found it. A form of dispute resolution for families entangled in divorce, the collaborative process developed as an alternative to hostile and often unnecessary Rambo litigation.

My involvement in the Inns crusade opened me up to the possibilities of the collaborative process as soon as I stumbled upon it. And stumble we early practitioners did. Unlike the Inns of Court movement, there has been no core of dedicated lawyers intent on spreading the word and no group of related organizations (the Inns cannot forget the early support of ATLA, ABOTA, and West Publishing, to name just a few) willing to lend their financial support to our cause.

But the collaborative movement is now finally gaining momentum, spreading throughout the country and the world. We collaborative practitioners are changing the way the world gets divorced. In collaborative divorce, a team of professionals (usually a lawyer for each spouse, an unaligned mental health facilitator, and a financial neutral) work together in a civil manner that promotes transparency and prevents the churning that has become endemic among divorce lawyers. There is but one defining prerequisite: Two lawyers agree (in writing) that they will not represent the clients in court if the clients choose to forego the collaborative process. This eliminates any incentive (conscious or otherwise) to stir the pot; the lawyers are completely focused on achieving a settlement acceptable to their clients.

Thus, in the team meetings, all of the professionals are freed to help the clients uncover their most important interests and creatively brainstorm and problem-solve resolutions to satisfy those interests. Collaborative teams are able to address not just the legal and financial issues implicated in a divorce case, but also the emotional issues.

So how do these two movements relate? The Inns of Court, above all else, promote relationships between attorneys because incivility toward someone you know and with whom you have dined is difficult. Collaborative practice relies on close relationships between lawyers. In fact, many of my cases are referred to me by “the opposing counsel.”

“What?!” you ask. “How can that be?!” you demand.

If you can appreciate how close the relationships between Inn members develop over time you can perhaps understand how this might happen. A lawyer commencing a collaborative matter, if he has the opportunity to recommend counsel for the other spouse, which he often will, is most likely to recommend someone with whom he has worked before, whom he trusts, and whom he believes has a high success rate in his collaborative matters. After all, in this process if the “opposing counsel” is successful, so is the referring counsel!

And imagine how much closer those relationships between collaborative lawyers grow over time, as we work through our clients’ issues, as we rely on each other to help our clients talk to each other (which they often haven’t done for a very long time), and as we trust each other to cover our backs in the crucial conversations, brainstorming, problem-solving, and selection of options.

One of the biggest issues currently facing family law practitioners is that “to a hammer, everything is a nail.” That is to say that to a lawyer, everything should go to court. But it should not. Families don’t belong in court, and professionalism and ethics require that family lawyers offer our clients all the alternate dispute resolution mechanisms, including the newest one: the collaborative process. The law should be a family’s last resort.

Now, don’t misunderstand me. Collaborative practice is not just for families. It has been used to resolve other types of legal and financial disputes. For example, the emotions involved in the dissolution of a business, especially a small, family-run business or a partnership between two close friends, are often similar to those in the dissolution of a marriage. Similarly, consider the issues and emotions that boil up when a family is involved in a probate dispute.

The collaborative process has been used to resolve sexual harassment/retaliation claims.
It has also been used to resolve a clash between the contractor and the homeowner over proper construction of a house.
It is easy to see why parties involved in any of these types of matters could benefit from the assistance of a collaborative team comprised of their attorneys, a financial neutral, a facilitative mental health professional, and any other neutral experts chosen by the team to problem-solve a specific dispute.

The ideals driving the collaborative divorce movement and the American Inns of Court crusade travel hand-in-hand. One key aspect of the Inns is the idea that members regularly “break bread” together. People have a more difficult time being rude to or betraying those with whom they share meals. Collaborative teams integrate this approach by offering sandwiches and snacks during full team meetings, as well as during the celebratory signing meeting. In fact, many collaborative cases begin with the professionals meeting together to share a meal and  discuss the clients, the potential issues, and the proposed protocols for the case.

Another vital element of the Inns is that more experienced attorneys mentor those who are less practiced. In litigation, opposing counsels battle against one another, with the more seasoned attorneys often taking advantage of the inexperience of younger attorneys. But in the collaborative setting, team members work together, allowing for an environment in which all professionals learn from one another and grow professionally.

The Inns inspire civility and ethical awareness among their members. In collaborative practice—a process that promotes transparency—members strive for honesty and integrity. The scheming, mudslinging, and sandbagging that often occurs in litigation is unacceptable in collaboration. Rather, professionals pump each other up, and the teams benefit when all members work together at their highest levels of effectiveness.

So, too, just as the Inns of Court encourage creativity among our members by asking each pupillage to prepare a monthly program and by giving awards for the most original of these, collaborative teams strive toward helping their clients reach creative outcomes that meet the best interests of the entire family.

And, like pupillage teams, collaborative teams benefit from the use of well-intended humor to lighten the mood, enhance communication, and unite team members.

Participation at Inn meetings by all members is also crucial. So, too, is it on a collaborative team. If the facilitator notices that a collaborative team member, whether professional or client, is not participating, the facilitator will meet with that team member to determine the reason for withdrawing. When all members of the collaborative team participate to the fullest, collaborative magic happens and important issues and feelings are not overlooked.

What impact has membership in the American Inns of Court had on my own family law practice? It ensured that I would be open to the concept of collaborative practice, for starters. I organized my own Inn (Tampa’s Cheatwood Inn) 30 years ago this year, and I’ve been a member ever since. I’ve also participated in several other Inns since then. More importantly, perhaps, I’ve had a hand in establishing at least another 30 Inns of Court.

Thus, I am indoctrinated in the concepts of professionalism, civility, mentoring, and ethics; of sharing my practice problems with other lawyers I trust and with whom I break bread monthly; and of setting an example of trust and confidence in the professionalism of the other lawyers in our community. This has made it easy for me to create a practice that requires trust in other lawyers and working together toward a resolution our mutual clients can accept. In fact, we collaborative lawyers mentor our clients. In any given divorce, we are two lawyers on opposing sides who demonstrate for our clients how to work together, brainstorm, communicate, problem-solve, and create resolution out of conflict.

Don’t get me wrong; our clients still get divorced. But they reconstruct their family systems instead of destroying them.

The best testament to this process is through the words of clients who have successfully ended their marriages collaboratively. At the end of each collaborative case, I debrief the clients. In one of my recent cases, my client admitted, “I learned how to communicate with [my husband], to wait it out, to calm down, and to think about the words I would say that could make our discussion better instead of worse.”

But she was not the only one with positive things to say. Her ex-husband said it more succinctly: “I came out of my divorce a better person.”
The goals of the American Inns of Court and of collaborative practice are fundamentally similar. At the heart of each is the promotion of ethics and professionalism for the benefit of the public. Collaborative lawyers have found a proactive method for putting Abraham Lincoln’s maxim—often quoted during the toasts at our Inn meetings—into action:

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough.

I could not say it better.

Joryn Jenkins, Esquire is the founding partner of Open Palm where she practices as a trial and collaborative attorney in Tampa, Florida. She is an active member of the J. Clifford Cheatwood AIC. Jenkins also served on the American Inns of Court Board of Trustees from 1991 to 1997 and received the 2001 A. Sherman Christensen Award.