Each year I’m faced with the decision which, if any, industry conferences to attend.  A shortage of time and money dictates that I cannot go to every conference I would like to attend.  Even if I could cobble together enough money to attend more conferences, my time is severely constrained and every hour spent at a conference is an hour that cannot be spent working for a client.

I’ve attended Defense Research Institute (DRI) conferences just about every year I’ve practiced, even though I’ve migrated committees from Young Lawyers, to Products Liability, to Commercial Litigation, to the Labor & Employment conference.  I’ve found these are well-organized and pretty useful.  I would recommend a DRI conference to colleagues.

A couple of weeks back, though, I attended a completely different kind of conference, which was an exponentially better use of my time.  I’m not going to discuss the specifics, because I was a guest and, unlike DRI or ABA, this industry group doesn’t maintain a website, publications and huge membership.  But it is precisely because of this concentrated scale that the meetings were so productive.

First, actual membership in the group is limited to in-house general counsel or legal staff members of companies in industries that routinely face the same or similar employment issues.  Actual members can bring guests who are outsiders, but membership will never be available to us “outhouse” lawyer.  This alone sets it apart from large industry or bar association conferences.  There are no sponsors or exhibitors.  More importantly, the conference does not become a “feeding frenzy” where hundreds of outside lawyers showboat or compete for the time and attention of a handful of in-house counsel.  There may be some marketing component to the conference, but it is low-key–limited to maybe buying someone dinner–and definitely not the focus or sole reason to attend.

Second, the group is smaller, but it is also comprised of industry leaders.  Sure, war stories are traded, but they tended to be fresh, relevant and real.  Because of the tighter group size, it permitted the agenda to be loose and unstructured in a way that permits the group to spend more time on topical topics.

Another advantage of the limited group size was that the actual members (and some of the guests) knew each other pretty well.  I observed that this led to a candidacy of the discussion that I would never expect to see at a larger group function.  Anyone who’s tried to build a better mousetrap by committee knows that familiarity breeds comfort which tends to lead to better end product.  That’s what it looked like to me, anyway.

It was a good experience; I hope I am invited back.  I would surely counsel anyone lucky enough to be invited to attend one of these smaller, more concentrated industry conferences to jump at the chance.

Ok, these are actually two separate “secrets.”  Think of the extra as a bonus.  As you’ll see, however, these are related and flow from the universal truth that pretty much every client likes to think and feel that he/she/it is the only client in your professional life and the only one you care about.

The first is: Be Responsive.  Whether you communicate with your clients by telephone, email or even text messages, immediacy or ASAP is the name of the game.  Obviously, if you can take a phone call (without violating the second “secret” of this post below) that is best.  If you can’t or your client initiates contact by email, I like to follow the rule of responding within 2 hours.  If it is not possible to respond substantively within 2 hours (very often the case), I like the approach of responding with an email that (1) acknowledges receipt of the client’s communication; and (2) promises to get the answer and/or provide a substantive response within 24 hours.  The important corollary to this policy is not to forget to follow-up with the substantive response within a day.  If you can make this a pattern, and follow it, it helps to lead clients blissfully believe they are you only–or at least most important–client.

Second: Be Present.  For some reason, I find it easy to shut off the world around me when I am with my 4-year-old daughter.  I like to think I’m completely present with her.  This helps me feel like, even though I work a lot and can’t spend as much time with her as I’d like, at least the time we spend together is high quality time.

I try to apply this same principle to time spent with clients, albeit for different reasons.  It’s not that my clients are adorable now and will some day grow up and become, if not less adorable, at least less available.  Instead, I try to put myself in my client’s shoes.  Anyone who pays a few hundred dollars an hour for my time deserves my complete attention.  That’s what I would expect, and that’s what my client should expect.  This means in most instances I do not, when with a client, answer my phone, check the stock market, read and respond to email concerning other matters, or use my iPhone to check the paltry stats on my blog.  In fact, I’m not adverse to leaving my phone in the car or turning off the ringer when I know my undivided attention will be appreciated.  The only exception is when I’m with a client and there’s down time and the client starts checking his or her own email.

I’ll admit it’s challenging to apply both of these habits.  In other words, it can be hard to quickly respond to calls, emails or text messages when I’ve elected to shut off or ignore my phone to be present with a client.  But it’s important, and if practiced with care, is bound to engender client trust.

Many of us give little thought to invoices we send to our clients.  Invoices are utilitarian and serve an important purpose, at least in a for-profit law practice.  Beyond being a routine request to be compensated for work performed, however, we tend not to give invoices much serious thought.  This can be a mistake.

We should expect that clients will examine with a critical eye everything they receive from their lawyer, whether it is an email, a copy of some work product, or a periodic invoice.  They may look for different things.  For example, a sophisticated General Counsel expects to see high quality legal analysis and skilled advocacy, while less experienced clients may limit their evaluation to whether what they receive looks professional and is free of grammatical or typographical errors.  But every time we transmit written material to a client we invite critical scrutiny of our skills and professionalism.  It is unavoidable.

With this in mind, we should begin to view our invoices, not as a purely utilitarian demand for payment, but as a kind of brochure advertising the quality of our services.  Changes in the way we present our request to be paid can enhance our clients’ trust, not only in our abilities as professional advocates, but also in the fulfillment of our ethical obligation as fiduciaries.

I can think of two billing habits that, if done thoughtfully and consistently, should enhance client trust.  The first coincides with most clients’ chief concern, second only to quality of representation: how much we actually charge.  Similar to my earlier “secret” #1 (Be Honest), it is no secret that, just as we owe clients a duty of candor, we only bill for work we perform at a rate that is reasonable.  That is obvious.  That is Ethics 101, right?

Billing that enhances client trust—the “secret” that is the subject of this post—goes beyond Ethics 101 and enters the more nebulous realm of added value.  I’m not a legal services pricing specialist (a vocation the ABA Journal predicts will soon be a BigLaw fixture), and I try not to over think this stuff.  Instead, I try to follow this golden rule: put myself in the shoes of a client reading my invoice and ask what would I be comfortable seeing and paying if it were me?

There is one absolute truism that seems to resonate with just about any client that is not a Fortune 1000 or larger company: they hate, hate, hate to be charged for telephone calls between the lawyer and the client.  Particularly irritating are billing entries for such telephone calls that last 18 minutes (i.e., .3) or less.  Only clients who work for giant companies that are basically in the business of being sued (i.e., insurance companies, large California employers) can stomach seeing this on an invoice.  Everyone else likes to think they can pick up the phone and ask their lawyer a question—or just shoot the shit—without seeing a $100 (or more) charge for it.  I get this.  However many times we might tell a client “I don’t have anything to sell other than my time,” it is guaranteed to rankle most clients when they are charged for a short phone call with their lawyer.  Sorry.

Now.  Don’t squander an opportunity here.  While I would reduce (or eliminate) the instances you actually bill clients for short phone calls with them, I would continue to ALWAYS record such calls on the invoice, just mark them “no charge,” or something similar.  This engenders trust.  It says to the client, “I am committed to you, I know you want to talk to me without seeing a bill for it and I am willing to go that extra mile for you!”

The second billing habit that can lead to greater client trust relates to how we describe the work we perform.  Just like Tupperware parties, three martini lunches and hiring of first year associates, the days of the simple “For Services Rendered” billing entry are long gone.  But I would argue it’s not enough just to describe a task.  For billing entries to contribute to building client trust, they should not only describe the task but briefly explain, in crisp, clear terms, why the task was necessary.  I think this is particularly important when the task was somehow occasioned by the opposition.  For example, don’t write “Telephone conference with opposing counsel re discovery,” when an equally honest entry would be “Telephone conference with opposing counsel re their request for additional time to respond to pending discovery.”

I also eschew legalese when drafting billing entries for nonlawyer clients.  This sends the message: “I want you to understand what you’re paying for.  I’m not trying to trick you with fancy legal talk.”  Again, this is calculated to gain trust.

I recognize these “secrets” are not brain surgery, or even secret.  But they were things it took me some time to figure out and I hope you find them helpful to your practice.

This is probably the easiest step outside lawyers can take to gain client trust.  Whether we represent a corporate defendant in a business or employment dispute, or an individual accused of a crime, every kind of client appreciates being kept up to date.  I try to resist the temptation to think that a hearing or filing was too trivial to inform the client.  This is especially important with clients for whom lawsuits are not a normal occurrence.  Unlike litigation veterans, these newbies are not yet numbed to the sturm und drang of a lawsuit, and like to feel involved at every turn.

Also, I find that if I make it a point to keep my client informed of just about everything that goes on, every development, I am far less likely to let something major slip by–say, the filing of a dispositive motion or a settlement overture–without alerting the client.  I’ve found surprises tend to be disfavored.

Unless a case is in front of a judge with some kind of “rocket docket,” there will typically be periods in the life of a case when it gets quiet.  Even when this happens, most clients still like to know you’re not asleep at the wheel.  One way to let your client know you’re still in the game is to drop a note (i.e., email or even a letter) giving them an “update.”  Even if the update is nothing more than a reminder of the next anticipated event in the case, coupled with a brief explanation of its significance, it lets the client know you’re still on the job.  A nice way to raise the goodwill quotient is to record the update as a “no charge.”  Just an idea.

Ok.  Since trust and honesty go hand-in-hand, this seems pretty obvious and not such a “secret,” right?  The problem is, I’m not referring in this post to the “Don’t-Commingle-Client-Funds-With-Your-Own-Money,” or “Don’t-Say-You’re-Licensed-To-Practice-Law-When-You-Were-Recently-Disbarred” brand of honesty.  Anyone who is a prospective or existing client assumes you’re licensed to practice and not going to commingle funds.  It’s not an opportunity to gain trust.

When I speak of honesty as an opportunity to gain trust, I’m referring to the candor that comes into play when lawyers pitch to get a client or to get a case, and the temptation arises to be overly optimistic.  For example, do you ever find yourself making statements like this: “There’s a good chance we’ll win!”  Or, “Don’t worry it won’t cost much.”  Or, “There’s a good chance we’ll win and don’t worry it won’t cost much!”

I’ve been criticized by colleagues because I’m not much of a salesman.  I try not to oversell myself as some kind of miracle-worker, and I don’t oversell a case, even if it’s a good one.  After all, every piece of litigation carries risks for both sides, particularly if it’s ultimately arbitrated or tried.

I’m not much on puffing.  But I do try to provide a candid assessment of the risks, strengths and weaknesses of a case.  I do this at the outset.  And then I try to do it as the case progresses.  I like to reassess at critical junctures.  A juncture can be critical because it represents a strategic turning point; more often, however, the opportunity (or obligation) to reassess arises because we are about to invest heavily in the case.  These junctures are typically: (1) before filing the action, (2) before undertaking discovery, (3) before escalating discovery or initiating depositions, (4) before filing or responding to a dispositive motion, (5) before a mediation or other serious settlement negotiation, or (6) before commencing final trial preparation (when things tend to get really costly!).

I’ll admit that complete honesty about the risks of a case and/or the potential expense has led some prospective clients to look elsewhere.  I have had prospective clients pass after my “pitch” wasn’t as sugar-coated as they hoped, only to have them contact me later after the lawyer they ultimately hired disappointed them.  I have not, however, had a client complain at the end of a case because I didn’t make them aware of risks or candidly discuss potential costs.  This is the kind of honesty I believe builds a client’s trust in his or her lawyer.

Another potentially thorny area comes when clients look to us for immediate answers.  Sometimes, when an honest answer is “I don’t know,” we are tempted instead to punt.  With mixed results.  I prefer, and attempt to make it a practice, to be candid if I don’t immediately know the answer to a question, and promise to find out.  Even if it’s a question to which I feel I should know the answer, I remind myself that we’re all only human, and a delayed but absolutely correct answer is better than a prompt, but incorrect, one.

A final thought: sometimes the challenge in being honest about the risks or expense of a case comes, not from any intend to deceive, but from a failure to be completely honest with ourselves about the “warts” of a case or what it’s going to cost.  We want for the costs to be reasonable and the odds of winning to be strong.  We want it so badly that we lose touch with reality.  But, as counselors of law, part of what we’re hired to provide is a reasoned, objective evaluation of the merits of a position our client plans to take.  We can’t do that if we’re not honest with ourselves.

I was talking the other day with a young lawyer about, guess what,  the challenges facing new graduates.  This lawyer had just started a new job and I was telling him how fortunate he will be to get some first class mentoring during his early years of practice.  The conversation got me thinking about what the downstream impact could be of the drastically reduced hiring of brand new lawyers.  I’m talking now about lawyers who in another time and a different economy would get a job with a law firm or government entity for at least the first couple years of practice.  It seems like the news reminds us daily how this has changed and the market for newly minted lawyers is dismal.  Others remind us that this is not just a consequence of the recession, but a more permanent trend resulting from a change in our clients’ collective attitude about paying–even reduced rates–for neophyte lawyers to learn their trade. 

I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared. 

This is because the training and experience we receive in the first years are pretty important in our development as a lawyer.  Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing.  But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law.  I know there are respected bloggers who would take issue with this assertion.  And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop. 

I’m not talking about the ability or experience conducting legal research.  Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense.  What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain.  I’m referring to judgment about when to take a case and when to say no.  Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you.  Judgment about how to shape and deal with clients’ expectations.  Judgment about how to manage a client who is persistently untruthful about the facts.  Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide. 

It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time!  This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area.  But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.   

What will be the impact to our practice and profession from this training vacuum? It could be significant.  For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door.  Our shrinking, already overstressed courts will become a repository for even more meritless cases.  I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam.  Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.  

The real victims, though, could be clients.  Clients who are misled, overencouraged, underwarned or led down the wrong path.  Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist.  Or at least told that the odds of winning don’t look too good.

Enough.  I tend to dislike writers who do nothing but diagnose a problem.  A proposal for a solution, even something half-baked, is the least a writer should do. 

Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations.  As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation.  If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack.  If economics dictate that tuition needs to increase to make this additional training possible, so be it. 

Local, county, state and national bar associations should also help fill the void.  There is no shortage of continuing legal education programs, at least in those states which require it.  But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers.  I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students.   Perhaps these programs could be coordinated with pro bono opportunities.  I’m just thinking out loud . . .

 I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers.  It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training.  Not just sloppy lawyering or calendaring mistakes, but errors in judgment.  I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.

*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).

Certainly the biggest challenge for me, as an outside or, if you prefer, “outhouse,” lawyer representing private clients is keeping up my client development efforts, even when I’m absolutely slammed in the actual practice of law.  I know I’m not alone and this challenge is hard for just about everybody on the outside.

I sometimes envy people with client-development or sales-type jobs that allow (or force) them to focus exclusively on selling.  Unlike a pharmaceutical representative or residential realtor, lawyers have to constantly balance the substantive side of the job (conducting discovery, writing and arguing motions, preparing for trial) with the sales side (writing, speaking, meeting, etc.).  When push comes to shove, at least for me, the sales side usually takes a back seat to the demands of the practice.  This isn’t surprising: clients hire trial lawyers to litigate cases, not to spend their time finding new clients and more cases.  Also, lawyers aren’t typically sued for malpractice for neglecting their marketing responsibilities and focusing instead on winning the case.  On the other hand, without a pipeline of new work, we find ourselves languishing, dead in the water, when a busy case resolves.

In a perfect world, I would use others to appropriately leverage both sides of my job.  I would have associates and paralegals available to leverage for performing practice-related tasks they are equally, if not better, suited to do.  But then I would also have someone, even a part-time employee who could help make sure I keep up with my marketing and networking responsibilities, scheduling meetings, arranging for articles and speaking opportunities.

Alas, it’s not a perfect world, yet.  Until then, I’ve got to keep struggling not to neglect my marketing efforts when, as in the past few weeks, I’ve been extremely busy with a particular case.  I recently spoke with my business development coach about this challenge.  His suggestion, loosely paraphrased, was that I shift my orientation away from being a legal “practitioner” to being a legal “business developer.”  I should understand as my primary job, not to win cases or achieve favorable settlements, but rather to generate more business.  I’m not sure I understand or completely agree with this view.  But thinking about the issue has helped me develop some  simple strategies designed to help me maintain the law practice/business development balance, even when things get hectic.  Here they are:

1.  Schedule, schedule, schedule.  Like many litigators, I live my life out of a calendar.  I’ve found that, provided I get a coffee, lunch or dinner date on my calendar, I have little trouble scheduling around this appointment.  The takeaway:  get something on the calendar, even if it has to be rescheduled later.

2.  Combine case-related travel with visits to existing or prospective clients.  The most successful practitioners I’ve known make it a habit to visit existing and prospective clients face-to-face whenever they are “in town” for another reason.

3.  Calendar follow-up steps.  For every 5 appointments I schedule for coffee or lunch, at least 3 cancel or reschedule.  I have a bad habit when someone cancels at the last-minute of failing to follow through immediately to get a new date on calendar.  The result is a long, long delay and starting from scratch on the rescheduling.  I’m trying now to follow-up right away when someone cancels to get a new appoint on our calendars, even if that, too, eventually must be rescheduled.  Ideally, no meeting will be left behind.

4.  Do business development before anything else.  This is one my biz dev coach really likes.  He suggests I spend between 5 and 30 minutes each morning on client development before doing anything case-related.  I’ve tried to adopt this, but it’s challenging given the unpredictability of a litigation practice.

Hopefully, these 4 strategies will help me stay out of my shell and not find myself dead in the water whenever a particularly time-consuming case resolves.