CLIENTS AND LAWYERS NEED EACH OTHER
Clients, ya gotta love ‘em. They need us; we need them. We can’t get along without each other. Sometimes, we can’t get along with each other. How do lawyers maximize their chances of getting along well with those really important people in their lives, their clients? Here are some thoughts.
Most of the readers of this journal are engaged in some form of "suburban general practice." Perhaps the single most important feature of this practice is that we deal every day with real people and their problems — no big corporations, no antitrust suits, no big securities issues. Just one of the kids in trouble, the sale or purchase of real estate, business customers who don’t pay, a divorce, a slip and fall, a death in the family. Most of our clients do not deal with lawyers every day of the week. Often their trip to our offices is their first-ever encounter with a lawyer. Often, they hope it’s their last. Often they are scared and wish they weren’t there. How do we deal with this?
LAWYERS SHOULD WORK TO ESTABLISH A LEVEL OF TRUST IN THEIR CLIENTS
In any successful client-lawyer relationship, there has to be a level of trust that goes beyond just qualifications. Many times, the person who graduated at the top of the law school class lacks people skills. I wouldn’t exactly describe the good relationship every client wants to have with his or her lawyer as "chemistry," but it’s close. In the best client-lawyer relationships, the client should have a gut feeling, a level of comfort that goes beyond intellectual evaluation of a lawyer’s external qualifications.
LAWYERS SHOULD STRIVE TO REPRESENT A BROAD SPECTRUM OF CLIENTS
The same should not necessarily be true of the lawyer. The state has granted us a monopoly and in return we must serve the public by representing as broad a spectrum of clients as our skills permit. This does not mean we have to take every client who comes in the door. It does not mean we have to represent the client from hell. It does not mean we must continue to represent every client who cannot pay. After all, we do have to make a living at this. What it does mean is that we must be as inclusive in our selection of those we represent as we can.
I witnessed a noble example of this kind of representation early in my practice. I was an Illinois Assistant Attorney General handling a habeas corpus case. The prisoner seeking to have his conviction overturned was a German immigrant and a self-styled Nazi. His anti-Semitism was obvious and disgusting. He was represented in the habeas corpus action by another German immigrant who worked in the State Appellate Defender’s Office. This immigrant’s Jewish parents fled the Nazis in World War II. I, as a gentile, was so disgusted by the prisoner’s hate, I could never have represented him. This Jewish lawyer, a refugee from the holocaust, was able to lay aside his feelings and provide good representation to the Nazi because the lawyer’s principles and his place in the system of justice demanded it. Even if we never represent a Nazi, we can profit by this lawyer’s example.
THINGS LAWYERS CAN DO TO ESTABLISH CONFIDENCE: COMMUNICATION
That being said, we still need to establish that desired level of confidence. This is particularly so for those of us who are in private practice. After all, we must attract clients in order to sustain our livelihood. In our kind of practice, we need to like people and be genuinely interested in them and their problems. If we do, it will show.
One builds that level of confidence in many ways, but there is one above all others: communication. Your clients need to hear from you. You need to explain things. You need to tell them what to expect. You need to answer their questions. We practice law every day. Things that are second nature to us are complete mysteries to our clients. We need to explain things that are obvious to us in a clear and simple way without talking down to our clients. You don’t even need to win the client’s case, although that’s important. You need to show your client you are working hard on his or her behalf and presenting the most persuasive case possible.
Not only must you work hard, but the client must constantly know that you work hard. Report to the client in writing. They love to get your letters. The client should hear about every significant event in a case from you in writing. In every written report to the client, you should tell him or her when he or she may expect to hear from you again and then report at or before that time, even if it’s only to say nothing has happened yet and why.
Another big advantage of reporting frequently in writing is that if there is any question later about what happened or whether the client was informed, you can produce the letter. When there will be a period of inactivity in the case, inform the client why and how long it will last. For instance, when our firm does an appeal, we always inform our clients that after the flurry of activity in producing the docketing statement, procuring the record and writing the briefs, they won’t hear a thing for 6 months or more. We assure them that they will hear as soon as we do. Every once in a while, a client will come to us with a horror story about a lawyer who took the case and the retainer and then apparently did nothing. The client received no letters, no pleadings, not even a bill. The lawyer may or may not have been doing a good job for the client, but it didn’t mean a whole lot because the client didn’t know what was going on. Let your clients hear from you frequently. Bill the client monthly and explain in detail what you have done. The client wants to know what he is getting for his money.
THINGS LAWYERS CAN DO TO ESTABLISH CONFIDENCE: THE INITIAL INTERVIEW
The first meeting with a client is crucial. It’s important to make a good impression at the beginning. I always interview the client in the library-conference room or the spare office. My office is always cluttered with work. It’s not the most conducive place for good communication. The physical surroundings, your attitude, words and body language should all convey to the client that there is nothing more important to you at that moment than that client and the client’s problem, and there shouldn’t be.
You should get to know the client as a person. During the interview, there are always chances to touch on subjects of personal interest to them. (Don’t spend too much time on this if you’re charging by the hour, or tell them the meter doesn’t run at this point.) Listen! Listen! Listen! We lawyers always talk too much anyway. This is particularly important at the beginning of the initial interview. Draw the client out and listen to his or her story. Don’t interrupt or pontificate. Express interest in the client’s story. If your’re not interested, you probably shouldn’t take the case. Once the story is told, then you can begin to give your advice or opinions about the client’s matter. Always ask the client at the end of the interview if you have covered everything and whether there are any more questions you can answer. Always treat the client with respect. Don’t talk down. Don’t use legalese. Speak and write in plain, declarative sentences. Say what you mean and mean what you say.
THINGS A LAWYER CAN DO TO ESTABLISH CONFIDENCE: THE LITTLE THINGS
Little things are important too. Here is one. Never refer to your client as "my client." He is Mr. So and So or, in these casual times, she is Judy or Susan. People have names. Always use them. This goes for witnesses and opponents too. Do not say "Plaintiff" or "Defendant." Call the person by his or her name.
Here is another: If you are working on a matter on an evening or weekend, feel free to call the client (if it’s not too late at night). The client will be impressed that you are staying late to work on her matter. Also, observe the 24 hour rule. All phone calls should be returned within 24 hours. If you are really busy (as I usually am) and you have good support personnel (as we do), at least have a support person call and tell the client that the lawyer will get back to them. The support person can ask the client what it’s about and assist the lawyer in being prepared to answer the client’s question.
"Will you win my case?" Clients always want to know what result you can produce. Many will ask whether you can win their case. In discussing this subject, you must be confident but circumspect. I tell clients to avoid any lawyer who assures them she will win the case. Litigation is just too chancy. (Transactions can be chancy too.) Anyone who has tried a lot of cases remembers those times when upon hearing the verdict or ruling, his jaw drops to the floor in disbelief. How could the judge or jury have possibly come to that conclusion? It happens, and the client must be prepared for it.
The lawyer is there to provide advice, counsel and representation, to present the client’s case in the most comprehensive and persuasive way possible. The result is in the hands of the judge or jury. In transactional matters, you enter the negotiation armed with the facts, the law, your experience, judgment and persuasive powers, but you can’t control what the other party finally decides about the deal. You can only influence. The client needs to know that.
HELPING THE CLIENT TOWARD AN OBJECTIVE VIEW OF THE CASE
Another problem is that the client is almost always so deeply immersed in her situation that she cannot see the other side of the case. She takes it for granted that her case is completely meritorious and that no one could ever see it differently. There is a gut level assumption that she is entitled to the relief she seeks and that all it will take is a little talk with the judge. I was mightily embarrassed a few years ago when a rather attractive divorce client took it upon herself to stop by the judge’s chambers late in the afternoon. She told me after the fact that if she could only talk with the judge for a few minutes, he would surely understand that she should win her case. Fortunately, the judge was not there, and I told her if she tried that again, she would have to find another lawyer.
We as lawyers must never forget there are frequently more than two sides to any issue and we need to keep reminding the client of that fact. Dealing with this attitude takes time. The client must constantly be reminded of countervailing considerations. Over the course of the representation, the client often continues to assume at a completely unconscious level that he or she is right and the judge or jury is bound to see it that way. We must persevere in our effort to disabuse the client of that notion without conveying an overly negative impression of the case. Of course, that’s not easy to do.
I frequently use this way of explaining: I tell the client that when we present our case to the judge, we will present certain evidence and arguments. The other side will present certain other evidence and arguments. Never say that the client’s view is unfounded or that his version of the facts is wrong. Just present the countervailing testimony or view and say, "Now let’s discuss how we can refute their position. What countervailing evidence do we have?"
No client ever enjoys hearing that he is wrong, and you almost never have to tell him that he is, even if it’s so. You can always explain, "If we present this evidence to the judge or jury and the opposing side presents that evidence, the verdict is likely to go against us." The weaknesses in the case should be explained in a matter of fact and neutral way. Always present the case in terms of the judge or jury’s decision and what it takes to persuade them, not who is right or wrong. Do not criticize the client or his case. Only explain how strong or weak the case will be to the trier of fact.
This kind of abstract legal realism can be uncomfortable. After all, isn’t the litigation process a search for truth? Aren’t there objective facts? Shouldn’t those facts be obvious to the judge or jury? Maybe, but the only way to get to the truth is to put on the most persuasive evidence.
Once upon a time, I was a supervisor in the Illinois Attorney General’s Bureau of Prisoner Litigation. I assigned a prisoner’s civil rights case to one of our newer assistants. Though a recent law graduate, she was older than most others in her class and in our office, and was mature and intelligent. The case went to jury trial. I did my best to help her, but I had my own and a lot of other trials to worry about. She proceeded to trial (her first) on the unexamined assumption that if she just put the witnesses on the stand and let them tell their stories, the truth would come out. Appointed counsel for the prisoner was an experienced and canny criminal defense lawyer. His cross-examination of some of the unsophisticated and underprepared prison guards was devastating. My colleague won the case anyway, but we both learned a lesson. In litigation, the truth needs as much help as it can get. Clients need to understand that.
THE VALUE OF A GOOD RETAINER AGREEMENT
Never underestimate the value of a good retainer agreement in client communication. The retainer should be in plain English: No legalese (my rant against legalese is the subject of another article.) It too should be written in short declarative sentences. It should be divided into subject headings. The whole agreement can’t be too short, because you have to cover a lot of ground. This is why you should break it up into short bits with explanatory headings. With a good, clear, detailed retainer agreement, the client knows what to expect. If, at any time during the handling of the matter, the client’s expectations go astray, you can gently remind him of the appropriate provision of the retainer.
THE DIFFICULT CLIENT
Some clients are just the nicest people. They are usually happy with what you do for them. They are not demanding. Sometimes they are even apologetic when making reasonable requests for your time and effort. These are the clients who recommend you to others. Cherish these clients. Cultivate them. Keep them happy. They are the ones who make it all worthwhile. Their attitude helps you when it comes to that other kind of client, the high maintenance one.
High maintenance clients come in different forms. Many are really nice people, but they are nervous about being involved in their legal matter. This is particularly so in litigation matters, but it happens in simple real estate closings as well. For this kind of high maintenance client, patience is what’s called for. Take the time to explain to them what is going on, what they might expect in a given situation, what their options are, etc.
There is another kind of high maintenance client. This is the one who thinks his or her matter is the only important thing you have going at any given time. This is the one who pelts you with phone calls day and night. This is the divorce client for whom everything is an emergency that requires your immediate and undivided attention. She calls you at home on Christmas Eve (yes, it’s happened to me). If you’re patient, if you have a thick skin, if the matter is meritorious and lucrative, if the client comes from an important referral source, maybe you want to handle the case. If not, maybe you don’t. The trick is to spot these clients in advance.
Frequently it is obvious in the initial interview. The client is demanding, skeptical, combative. The client obviously believes that the merit of his case is obvious to anyone, and that he has a sure winner. I remember rejecting one divorce client a number of years ago when these things became apparent in the first interview. She was nasty. She hated her soon to be ex-spouse. She seemed to hate everyone in the world. I learned not long after our meeting that she had met an untimely death. She was in her late thirties. I often wonder if the cause of her death was not a fit of apoplexy at some reverse in her case.
Another type of high maintenance client is the one who is obsessed by his matter. It consumes his waking hours. He dreams about it every night. There is nothing more important in his life. I have encountered this type of client in different situations including divorce (no surprise), but also in contested probate and even business litigation. One way to spot this in advance is the discussion recommended above about the client’s interests, family, etc. Get to know the client as a person and you will be in a better position to know what is important to that client. Again, listen, listen, listen. Watch the person’s body language. Watch how the person interacts with you and others who may be present at the interview. This is tough. Sometimes, it is impossible to know. How do you handle them?
A large measure of patience is required. The other ingredient is firmness. The client may not call you at home. The client must be reminded of what a reasonable expectation is under the given circumstances. The client obviously wants a good lawyer. The client must therefore realize that any good lawyer’s services are in demand. She has other clients. Whenever you are working on that client’s matter, there is nothing more important to you at the time. Other clients have a right to expect the same. Keep a close eye on clients like this. If handling their matters gets to be too much, sever the relationship. Your mental health is more important to you, your family and your other clients than hanging on to every case you have.
SEVERING THE RELATIONSHIP
Severing any client relationship must be done with tact and grace. Sometimes it is the client who does it. In those cases, don’t feel bad. It happens to everyone from time to time. Sometimes the lawyer has to be the one to call it quits. In those cases, be sure that the matter is in as good a condition as possible when you give it up, and that whoever takes over after you is not unduly hampered in her ability to conclude the case. Tell the client that you are unable to handle the matter any longer and that you will be glad to cooperate with your successor. It is not necessary to go into detail as to why. If you have to sacrifice an outstanding fee balance in order to gracefully exit, do so. You should be keeping an eye on the balance anyway and not letting it get too big.
ONE BIG ISSUE: FEES
That brings up one of the really big client-lawyer issues: fees. Every client wants to know how much it will cost. For a simple real estate closing or a simple will, it’s easy to quote a flat fee and stick to it. For other matters, it’s a lot harder. Pricing a piece of litigation or a complicated deal is not like pricing a car or a washing machine, yet clients frequently want the same kind of quote they would get at their local Ford dealer or Sears store. Most of the time, you just can’t do it.
How to set fees, bill them and collect them is not the subject of this article. Suffice it to say that you should have a clear policy about how fees are set and billed for a given
type of matter, and that policy should be made clear to the client at the beginning. I handle mostly divorce and business litigation and bill by the hour. I always tell clients up front that how much it costs depends heavily on how much the other party wants to fight. A divorce client might come in and say it will be a simple, uncontested divorce. Such cases are rare as hen’s teeth. Complexities almost always intrude and the client needs to know that. An experienced attorney can nevertheless usually give the client a range of cost. I frequently break the matter down. If we settle after service of the complaint, it could cost x. If we have to do written discovery, it could cost y more. If we have to take it to trial, it could cost z more.
If the client is concerned about high fees, you should make that person aware of the availability of mediation. We have loads of good, trained mediators in the western suburbs for practically any kind of case. My attitude toward mediation has turned around 180 degrees from skepticism to applause. It’s really amazing what a good mediator can do, even in tough cases. If a mediation is successful, you are a champ for suggesting it. You have a happy client who will recommend you to others.
The most important thing to remember about fees is again communication. Communicate with the client up front about what the fee arrangement is. Provide the client with a clear and detailed retainer agreement that spells out the fee arrangement. Make sure the client signs and returns it before you begin work. Bill monthly. Make your bills a detailed description of what you did on every occasion you worked on the client’s case and what that work cost. Solicit the client’s questions about the bill. Don’t let clients get too far behind on the bill. It’s not good for you or them.
CLIENTS AND LAWYERS CAN HAVE A REWARDING RELATIONSHIP
Like any human relations, client relations pose difficulties. They have their ups and downs. Sometimes they come to an untimely end. With the right attitude, careful attention to the client’s needs and a lot of communication, the relationship can be rewarding for both the attorney and the client, and can also redound to the benefit of the entire profession.
Timothy B. Newitt, Sr. was one of two French majors in his entering class at Georgetown University Law Center where he received the J.D. in 1974. He studied foreign language at Wheaton College and the University of Illinois where he received the B.A. and M.A. degrees. He is a shareholder in Johnson, Westra, Broecker, Whittaker & Newitt, P.C. where he does mostly civil litigation.