The New Lawyer: How Settlement Is Transforming the Practice of Law.

Alexander David Kurke is a criminal lawyer in Sudbury, Ontario.

In this book, Professor Macfarlane seeks to chart a new course for the legal profession, based primarily on a recognition that “[a] 98 percent civil settlement rate, and the increasing use of negotiation, mediation, and collaboration in resolving lawsuits have dramatically altered the role of the lawyer.”

In the first chapter, Macfarlane explores evolutionary changes in the legal profession. While the traditional adversary model has favoured an expensive litigation mindset, case management strategies and mediation have been on the rise in recent years, to control legal costs and court delays. Resolution without trial is the norm, a fact which requires the recalibration of the legal profession. Macfarlane posits a “new lawyer” endowed with improved negotiation skills, communication skills pitched towards a negotiating model, and a view of the client as a partner in problem-solving.

In chapter 2, Macfarlane discusses the entropic systems by which professional identity, currently the adversarial stereotype, is maintained, but which can also serve as focal points for change. In chapter 3, Macfarlane looks at key professional beliefs that sustain the adversarial status quo: rights-based advocacy, justice as process, and clients as lesser partners to lawyers. In chapter 4, Macfarlane critiques the current subservience of negotiation skills to these key beliefs.

Chapter 5 offers Macfarlane’s vision of a new advocacy, in which negotiation towards consensus-building becomes a lawyer’s primary tool, and trial advocacy the fallback position. Winning and losing give way to a more holistic approach of conflict resolution advocacy. This conception requires a more participatory client (chapter 6), reduces the role of law to but one factor among many in managing consensus-building (chapter 7), and raises obvious issues of professional ethics (chapter 8). In chapter 9, Macfarlane sees legal education, a flexible judiciary, and interdisciplinary collaboration as essential for the continuing evolution of the legal profession.

This is a very densely written book which will find its readership in programs in alternative dispute resolution and among like-minded academics. While many may dispute the value of elevating negotiation to a position of primacy in the legal profession, this book usefully highlights its increasing importance to legal practice.