A Worthy List of Potentially Unworthy Clients

Don’t worry–I’m not going to name names. Actually, I’ve been fortunate and personally had only limited personal experience with clients who should be considered “unworthy.” But I know they’re out there. Although inability (or lack of genuine intention) to pay fees can be one major characteristic of the unworthy client (pro bono representations excluded), it isn’t the only characteristic.

J. Foonberg, in his How to Start and Build A Law Practice (1976), put together a pretty decent list of the kind of clients that can be trouble. Here are a few he suggests you avoid:

1. A client hiring you as the third lawyer on any case.

2. Clients “who proclaim loudly that you can have all the money recovered–they’re only interested in the principle.”

3. Clients who want to use your telephone, assistant and office space to conduct their business.

4. Clients who ask for a loan of money against their case.

If you pass on these clients, you’re passing up on some business–but you might be avoiding some expensive headaches, as well. In fairness to all of the unworthy clients out there, I suggest there are an equal or even far greater number of unworthy lawyers. Perhaps I’ll explore this concept in another post.

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Knowing The Score Before You Open Your Mouth


Legal blogging rock star and client service guru Dan Hull recently recommended an interesting book, Lawyering: A Realistic Approach to Legal Practice, by James C. Freund. Trusting Dan’s judgment, I promptly ordered up a dog-eared copy of the tome from AbeBooks.

Turning first to the chapter entitled “Handling Clients,” I found some interesting and sage advice right away. Freund asks what do you do when a client calls and wants to be counseled whether her company can legally do something. In the simplest terms, if a client asks you the sum of 2 + 2, do you automatically say 4? Or should we be concerned with what the client wants to hear? Would she prefer to hear 5?

Recognizing this sounds like ethical blasphemy, Freund rushes to explain himself:

“Now before you round up a posse to haul me before the bar association, let me hasten to add that the reason for desiring this knowledge is not . . . that it can or should affect the substance of your answer or reaction, where a legal issue or some other objective manifestation of your views is concerned. You’re not worth your salt as a lawyer if you provide phony answers to please a client. You have to call ’em as you see ’em, no matter what the consequences: it may be painful at the time, but in the long run your client will respect you for this and value your advice all the more.

On the other hand, knowing how the client wants to come out can be very important to you in deciding on the manner in which you reply–the style, as contrasted with the substance–and on shaping any practical advice you might offer.” (151-152)

Freund offers a couple of good illustrations, hypos if you will, to make his point. In the first, you are called by a client CEO who immediately announces you are on speaker phone and in the room with him is an “Employee.” CEO wants to know whether the company can issue the Employee shares of stock which the Employee will pay for with promissory notes.

While the law either allows or doesn’t allow the company to issue shares to an Employee to be paid for with promissory notes (I have no friggin’ clue), Freund points out that “the way that you handle the question can be influenced significantly by whether . . . (CEO) actually wants to issue . . . (Employee) some stock for notes, or whether . . . (he)’s just going through a charade–using you as a whipping boy–for the benefit of . . . (Employee).” (152)

What do you do? Freund suggests you try to ascertain what client CEO really wants to hear before you begin providing advice (assuming, unlike me, you could answer this query on the fly). Freund concedes it may not be easy to determine CEO’s angle:

“By the way, ascertaining . . . (CEO)’s real interest here may not be so easy–and tomorrow, you should let him know what an uncomfortable position he put you in, with a warning against future repetitions. For openers, don’t answer right away. Get . . . (CEO) talking; he’s likely to drop a clue (such as, ‘I told (Employee) this was a very difficult thing for a public company to do . . .’), which you can then pick up on.” (152)

Another way to get an idea what the client is looking for is to “test the water. Say: ‘And what did you tell him when he made that suggestion?’ The client’s reply should give you a fair indication of the direction in which he’s heading.” (153)

But why do you want to know? Again, it’s not about conjuring a phony answer, but about subtly strengthening your relationship with the client and bringing greater value. For example:

“If you determine that  . . . (CEO) isn’t really interested in issuing the stock, you can emphasize the legal difficulties which do exist under the applicable state law when you use notes to pay for par value shares–to say nothing of the unfriendly scrutiny such a transaction would receive from stockholders, other employees, and so on. All of this is good, sound counsel; you’re not deceiving anyone . . . On the other hand, if you sense that . . . (CEO) very much wants to issue the shares, then your litany of difficulties would be somewhat more muted, with a smooth transition into a constructive analysis of how the transaction can be accomplished–by securing the note, charging bona fide interest, and so on.” (152)

Again, as Freund says, the object of this preliminary fact-finding isn’t to cause you to change the substance of your advice to match the client’s desires, but instead to influence how you present the advice. The closer we get to the justifiably coveted status of “trusted advisor,” the more these subtleties matter. We’re not legal research “machines,” hired to churn out one-dimensional answers to legal questions without regard to how our advice impacts the client. Our role is not just to protect, but to advance the client’s interests, and the route to this goal is not always obvious or easy.

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Lesson From Big Dog Defendants: Insist On An Evaluation

I counsel and defend both small and large companies, mostly on employment issues and cases. I see many differences in how a larger, more established company handles its role as a defendant in civil litigation, and I think there are important lessons a smaller entity can learn from these “big dogs,” even if they never plan (hope!) to get sued again. Chief among these lessons is the value of a well-considered evaluation report.

Smaller companies might view any kind of written evaluation as a frivolous, unnecessary expense. I sympathize with this view, but I think it is misplaced. First, as you’ll see, I’m not advocating the kind of “term paper” report demanded by large corporate defendants. For a corporate client or insurance carrier that is regularly involved in litigation and knows what it wants to know, I’m happy to provide the most detailed report in the world. Why would I object–I get paid to do it?

But when I counsel a company that rarely finds itself in civil litigation, I don’t think it’s necessary to incur the cost of a 20 or 30 page tome. Rather, something that is between 2 and 4  pages total balances cost-efficiency with the importance of a written evaluation.

Before I get to what to look for in an evaluation, I want to cover timing. Large corporate clients for whom I’ve prepared evaluation reports typically require a comprehensive initial report anywhere from 90-180 days after the suit was assigned. Thereafter, most corporate clients like to see an update every 90-120 days, with some kind of even more comprehensive pre-trial evaluation about 60-90 days before the scheduled trial date. There’s no reason a smaller company should deviate from this timing. It is important to understand that an update is just that, it’s not a re-writing. I simply bold any information that is new since the last report. If there are things from prior reports that no longer belong, they can either be scored or deleted altogether.

Here are the elements I would, as a client, always expect from an evaluation of a case in litigation:

1. Brief statement of operative facts. Brief means brief. The point is to make sure both the client and the lawyer have a common understanding of the operative facts. These might be both what is alleged and what the defendant is expected to prove. The last thing any client should want is for its lawyer to start trial without ever having run through a narrative of the operative facts on paper.

Also, even a very small company will likely have people involved at the management level with only a marginal understanding of the facts. This brief (did I say brief ?) statement can be shared with senior management, directors, investors or partners, to bring everyone up to speed. In addition to the liability facts, I would also include a list of the theories of liability and a brief statement of the damages sought, even if only in summary prayer, rather than concrete dollars and cents.

2. Very brief evaluation of the venue, judge, opposing counsel and plaintiff. (I mean brief dammit!)

3. Evaluation of each viable defense, including strengths and weaknesses. This is really the heart of the evaluation. This should be written in language that, to the extent possible, is devoid of legalese or confusing concepts. Clients who are not lawyers should be able to read this section and get a clear understanding of what will be proven at trial and how. On receiving this, clients should ask counsel to clarify any point that is not clear.

Now, while this section of the evaluation is written for the client, part of the value is in the composition process itself. In formulating this part, the lawyer will be forced to think through the client’s defenses, evaluate their viability and even develop a short inventory of what evidence will support the defense or make it challenging.

4. Exposure. How much, realistically, could the client lose if the case is tried and lost. In my field, employment law, this needs to include an estimate of the opposing side’s attorney’s fees since most federal and state employment law schemes permit a prevailing employee to recover her reasonable attorney’s fees.

5. Ultimate recommendation. Is this a case that should settle? Is it a trial candidate: i.e., one in which there is a 75% or greater likelihood the client will win (I prefer to think of it this way: a jury will return a defense verdict 7 out of 10 times)? Clients’ risk tolerances differ; some are more willing to gamble, others want to be virtually certain of prevailing at trial (there’s no such thing as virtual certainty of a verdict, by the way).

If the recommendation is to pursue settlement, what is a reasonable settlement amount, and what is the proposed path to get there?

6. Tasks and budget. Clients should be entitled, at every stage of any lawsuit, to a list of what is anticipated to be done in the next 60-120 days, and a reasonable estimate of what the cost will be. Hopefully clients understand that this is only a thoughtful estimate of what is required and the cost. None of us is omniscient.

Crucially, an evaluation should be considered a living document. Cases evolve. If every single fact, estimate and nuance of an evaluation remains the same from the beginning of the case until the start of trial, something is missing. Again, I advocate an approach that simply adds new developments to an old evaluation in bold.

Many lawyers will provide some kind of evaluation as part of their ordinary practice. If you’ve hired one that does not, ask her not only to provide an evaluation, but to provide it early enough so that a bad case can be settled before so much time and money has been invested that settlement is not a viable option for one side or the other.

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Lawyers Being Honest, Even (Especially) When It’s Against Our Own Interests?

Colleagues criticize me because, when pitching to handle a case, I don’t “sell myself” enough.  It’s not just that I don’t sell my own experience or skills well enough, but also that I sometimes don’t paint an overly optimistic picture of the case.  What it’s going to cost.  How we’re virtually guaranteed a great outcome.

These may be valid criticisms, but I’ve always preferred the notion of being conservative about the expected outcome of a case.  I also never want to be accused, at the end of a case, of having misrepresented what it will likely cost to get the desired result.  I’ll admit such honesty has probably cost me business.

It turns out, though, that such honesty may be the very best thing when vying for the role of the trusted advisor.  At a recent conference, I learned that, based on comments gathered from general counsel at major corporations, the perception that an outside lawyer was being honest, potentially against his/her own interests, was actually a relationship “accelerator.”

So, when do opportunities arise for outside counsel to “accelerate” their client relationship through honesty at any cost?  Here are just a few:

1.  “I might not be the best lawyer for this particular case (or deal),” and I know that means you may not hire me.

2.  “I want to make sure you have a realistic idea what this is going to cost,” even though you might decide then not to sue or to settle instead.

3. “Your chances of winning are probably not going to improve by doing this additional discovery,” even though a scorched earth approach is vastly more profitable for me.

In addition to sleeping better at night, an incidental benefit of this kind of honesty is that, while I might not be the perfect lawyer for this particular case, or you decide not to sue this time, I know you are going to trust my judgment.  That’s really what I want, to be the trusted advisor, so you’ll think of me next time, and the time after that.

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There Are Useful Conferences, Then There Are REALLY Useful Conferences

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.

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5 Secrets to Gaining Client Trust: #5 Respond and Be Present

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.

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5 Secrets to Gaining Client Trust: #4 Make Sure The Client Is Prepared

It is my considered view that litigation lawyers fall broadly into two categories: (1) those that adequately prepare their clients to testify in deposition and trial, and (2) everyone else.  I have crossed both types of advocates and, without exception, lawyers who did not spend the time to properly prepare their client (or other witness) for testimony were corner-cutters most everywhere else in the case.  Like most defense lawyers, I eat corner-cutters for lunch.

There may be barriers to proper preparation of a client for deposition or trial testimony.  The biggest is usually the client.  Clients who are not often involved in litigation have a difficult time understanding the need for serious testimony preparation.  It’s time-consuming, expensive, repetitive, exhausting and generally irritating.  After all, these clients reason, I’m just going to be asked to tell the truth, right? How hard can it be?

Reluctant clients need to understand the importance of adequate preparation.  A deposition that goes bad, if it’s an important witness, can be a game-changing event in a case.  Fortunately, many clients will heed our advice and take testimony preparation seriously. 

Experienced lawyers differ on timing and methodology of testimony preparation.  I recently heard a “rule of thumb” of 2 hours of preparation for every anticipated hour of testimony.  This might work as a general guideline, though we seldom know beforehand how long a deposition is going to last.  I prefer allowing lots and lots of time for preparation, and scaling back the actual time spent based on the client/witness progresses.  Some clients/witnesses are naturally good at the process, others are not so good.  I like to think I know how to improve those who are not so good, and I’ve also developed various methods, which I might share later, for helping increase a client’s comfort level in giving his or her testimony.  Typically, practice alone—using credible mock deposition or cross-examination questions—makes a client more comfortable.  When a client or other witness is comfortable and relaxed, he or she not only gives better testimony, but he or she feels better about the process.  This, in turn, tends to build client trust in my skills. 

Our conduct in defending the deposition itself can also engender (or erode) trust.  Our clients need to know we’re there, alert and in control throughout the deposition.  Effectively maintaining control of the process, strategic objecting, etc. are subjects for other posts.  However, in addition to being alert, I think it’s important to maintain and convey a sense of calm throughout the deposition, even if opposing counsel is nasty or taunting.  I’m of the mind that it is preferable to terminate a deposition that has become uncivil (and seek a protective order), rather than subjecting my client to angry arguments between the lawyers.  It is rare, I’ve found, that a heated argument among counsel during a deposition will accomplish much beyond unnerving my client and leading to potentially harmful testimony.

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My Biggest Challenge: Staying Outside My “Shell”

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.

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Don’t Be The Third Lawyer For The Same Client On Any Case

A recent post on Legal Practice Pro, “When Substituting In, Beware The Pile Of Crap” warned about a risk faced by any lawyer who substitutes into a case in place of another lawyer: getting sanctioned for the unethical or bad lawyering of the predecessor.  This is surely one of the bigger risks when you take over for someone else.  But there are other things to think about when asked to “sub in,” particularly if there have been more than one lawyer who previously represented this client in the same matter.

I’m thinking in particular of the problem or “unworthy” client.  Anytime you are asked to get involved in a case mid-stream, and there have been a succession of multiple lawyers before you who have either quit or been fired, I’m going to bet it’s the client, not the lawyers, who is the problem.  Clients can be unworthy for a number of reasons: they fail or refuse to pay, or to pay within a reasonable time, they have unrealistic expectations of their lawyer, they ask their lawyer to act unethically, or some combination of these.

There is no question that many clients have legitimate reasons for seeking new counsel.  Maybe the lawyer is unskilled, unethical, spread too thin, or just an ass to work with.  But, if the same client could not make it work with two prior lawyers, and he or she is looking for a third, or a fourth . . . I say an alarm should sound: beware.

If you hear but cannot heed the alarm, and find yourself in the position of lawyer #3 (or 4 or 5 . . .), there are a couple of things you can do to reduce the risk that your engagement will end badly.  First, learn and know the file before the substitution is signed and you take over.  This can and arguably should include a heart-to-heart conversation with your predecessor(s).  As uncomfortable as this can be, it’s worth the effort.  Second, get a healthy retainer up front (assuming the matter is not a pure contingency fee case).  Most important, though, take the time to have an in-depth conversation with your new client and pay particular attention to whether his or her expectations about your involvement and the outcome of the case are realistic.  Unless your predecessors were first class idiots, avoid making promises or representations to the effect that you can guarantee a better outcome.  Because you simply can’t.

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