Rest in Peace is not a doctrinal text. Instead it is a philosophical reflection on probate and estate practice by Zinta Harris, an Australian solicitor.

It has become common practice for lawyers around the world to produce “soft” advertisement by way of case notes and practice updates. In some ways, Harris’s book is the best kind of soft advertisement: instead of showcasing her technical expertise, it seeks to establish the philosophical basis of her business.

Lay client are not in a position (and cannot generally invest the time) to find out who is the “best” lawyer in a technical sense. But they are in a position and need to find out whether the lawyer is someone they would like to entrust very important personal affairs with.

Harris’s core argument is that subjective response of bereavement should be the heart of every probate and estate legal practice. A response to bereavement is not a cold calculation of money and tactics: it is an emotional and deeply personal statement of one’s values and priorities.

A may spend years in Court and get a greater share of the estate than her strict entitlement. B may decide her dignity is more important than money, and walk away from strong legal claims to properly grieve and move on in life.

Neither A or B’s decision is objectively right or wrong. They have to decide what they want for themselves and what counts as “winning”.

If the priorities are unclear, the proper professionals to instruct are grief counsellors, not lawyers. If the court agrees with them, lawyers can take clients to desired destinations: but first the client needs to tell the lawyers where they want to go.

Put it another way, not even the “best” lawyer can guarantee results in litigation. There is an inherent uncertainty how a third party will look at a given inter-personal conflict. Law simply provides a framework for the debate, which is still essentially subjective in the sense of not reducible to scientific calculation.

So (especially in estate and probate) it is as important to think about what to the client’s own mind is the right thing to do; bearing in mind that (often a lot of) time and money will need to be spent to get the Court to recognise this, and in any case, the Court may get it wrong.

Harris wisely says just enough about the technicalities involved to show how easy it is to be lost in the forest of detail and forget the ultimate destination. Her (anonymised) real life examples have a ring of truth to them, and illustrate many of the pitfalls leading to estate disputes well.

I also learnt from Rest in Peace that there is an movement called “Collaborative Lawyers”. These are lawyers who are instructed just to facilitate negotiation and settlement: if parties go to Court, these collaborative lawyers cannot be involved in the (much more lucrative) Court work.

This sounds to me the right approach. Litigators are driven by the nature of their business to favour litigation. By removing this incentive, collaborative lawyers align their advice with the opposite incentive.

Furthermore, it seems to me being a trusted advisor and being a litigator are entirely different roles. A good advisor helps clients reflect on the big-picture pros and cons all the time. A good litigator boxes client’s case into establish legal categories, and fights to win within the box.

Traditionally, lawyers wear both hats at the same time. But a better approach may be to enforce a separation: the philosophical interlocutor on the one hand, the “doer” on the other.

In fact, this division of work, while doubling the head count, may reduce the true costs:

  • The good eggs need not suffer the cognitive dissonance of having to advise against their own financial and career-advancement by encouraging clients to seek non-legal resolutions.

  • The bad eggs have less room to thrive.

I would recommend Harris’s book to anyone who needs to use lawyers.