Appreciating Why Our Clients Appreciate Transparency

Cleaning Glass“I think in this age, optimism like that … it’s a revolutionary act.” — Jerry Maguire

Transparency in the practice of law was not included in my law school curriculum. Was it in yours?

In fact, it wasn’t until I launched a solo practice, 20 years in, that I began to appreciate, as I never did as an associate or Biglaw partner, the value clients place on transparency. No longer representing large, well-heeled or well-insured companies, in which my contact sits in his air-conditioned cubicle at the Home Office in Indiana or wherever, comfortably removed from the collateral damage and financial pain of a lawsuit, these days I deal daily with local mom-and-pop employers for whom the costs of litigation alone could spell financial ruin. These clients not only desire transparency — they feed on it.

What do I mean by transparency? Since I’ve already alluded to litigation costs, let’s start there. My clients from the days of yore nearly always demanded extensive and detailed budgets, often keyed either to the American Bar Association Uniform Task-Based Management System Litigation Code or something more proprietary. These days, my clients — small manufacturers, restaurants, retail and property management concerns — are typically unaware it’s even appropriate to ask for a budget.

Well, it is. And they should.

My argument here is not purely altruistic. If anything was hammered into my head during my two-decade apprenticeship for solo law practice, it was this: I’ve got to get paid! Businesses unfamiliar with the messy business of litigation, who aren’t burning off insurance, are invariably in for a rude awakening when they receive their first bill. If small business owners get heartburn when they receive their lawyer’s bill for negotiating a lease (they do), the bodily response to a litigator’s bill can be more like a heart attack.

This is not to suggest we haven’t legitimately earned our fees, or even that the business owner begrudges paying us — the topic for a different discussion. Rather, it may be they just can’t, and neither of us knew that until he opened my bill.

Sometimes the problem is definitional. Each of us has our own idea of what “expensive” means. Take, for example, an out-of-state deposition. When I tell a client, “we could do that, but it’s likely to be ‘expensive,'” I could be thinking, but leaving unsaid, that $8,000 means “expensive” (my last out-of-state deposition, to Nome, Alaska — literally!). Having no frame of reference for the cost of a lawyer traveling to Alaska and taking an important deposition, my client might be thinking a third or half of this amount is still really “expensive.” When he opens my bill, it’s time to call 911. Fire up the hearse!

Speaking from my own experience, I find my biggest reluctance in being transparent about the anticipated costs of doing something beforehand (it’s all too transparent on the invoice afterwards), results from a fear that the client won’t agree to something I think is necessary. This fear is legitimate. I want to win and some steps are necessary to win (like a deposition in Nome, where the plaintiff lives).

On the other hand, unless I’m prepared to do the work pro bono for my client’s estate (remember it was my invoice that killed him), I’m simply deceiving myself. If anything, the solution to this dilemma is greater, not less, transparency. By this I mean spelling out in writing the recommended action, the reasonably anticipated cost, and the expected consequences if the action is not undertaken. If the client can’t or won’t pay for it, that’s a discussion to have before my plane touches down in Nome.

Strategy is another area where clients appreciate transparency. Hearken again back to my days representing Fortune 500 companies. While my client may have been emotionally removed from the pain and cost of the lawsuit, he or she was usually intellectually involved in the development of our strategy. Detailed reports, including both a discussion of the strategy and the likelihood of success, were de rigueur.

My small business clients are all over the map on the topic of strategy. Some demand to know every detail and want to collaborate, while others just want to sit in the back seat, blissfully unaware whether what I’m doing — and what they’re paying dearly for — is reasonably calculated to actually work. I understand this thinking, and it actually makes my job easier, but I don’t generally countenance it. Why? Because the only surprise worse for my client than opening that bill for the Nome deposition is learning, as we file into the courthouse for closing arguments, that our case isn’t so good.

As I see it, three main reasons prevent us from being completely transparent with our clients on our strategy and chances of success. First, some clients would just prefer to keep their heads in the sand. As I’ve said, this tendency must be resisted. Second, we don’t feel comfortable trying to explain legal strategy to nonlawyers. Every lawyer has experienced this discomfort in his or her career; some experience it daily. Trial lawyers need to get over it, though. If we can’t confront the difficulties of explaining how we intend to apply the law to the evidence to a business owner, how can we reasonably expect to succeed in teaching these principles to jurors, who are only vaguely interested and often less sophisticated, when it comes time for closing argument? The third reason why we shy away from being transparent with clients about strategy is that we haven’t developed a strategy yet. Let me gently suggest that this could be a problem.

I want to suggest that transparency is not a lofty, or overly ambitious goal. It is as important for lawyers as it is for clients. Not only does transparency reduce the frequency of unpaid legal bills, it instills confidence. Long-term clients generally prefer to play the role of partner, rather than purely customer, and transparency fosters feelings of inclusion in the decision process. Finally, for those of us looking for another way to stand out among our peers, appreciating how our clients appreciate transparency is an excellent opportunity.

[This article originally appeared in the Los Angeles Daily Journal]

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