It’s your fourth hour into mediation. As you sit with your client waiting for the mediator to return with an increased offer, you are hoping to settle the matter today. When the mediator offers your client a mid-six figure offer, you quickly advise to accept. Yet, your client looks disappointed and says he will not take anything below seven figures. You end up spending the rest of your day convincing your client that they should take the offer and avoid the risk of losing all at trial. This is a classic example of the consequences that will occur when lawyers fail to manage their client’s expectations. The sensitive process of directing and confronting your client’s expectations can be balanced through proper discussions throughout their representation.
We’ve all heard the saying that communication is key when it comes to success in life, work and relationships. The same goes for the legal practice. Yet, according to the American Bar Association, failure to communicate with clients is commonly cited as the No.1 reason for bar complaints.
All too often litigators overlook the importance of keeping in contact with their clients throughout their representation. Law schools don’t offer courses on the topic and there aren’t many repercussions, as “unsatisfactory communication with one’s attorney does not necessarily equate with ineffective assistance of counsel.” (See People v. Hart (1990) 20 Cal.4th 546, 604.) Guidance on the issue for attorneys in California is also limited. California Business and Professions Code section 6068, subdivision (e)(1), requires that an attorney “keep clients reasonably informed of significant matters with regard to which the attorney agreed to provide legal services.” Rules of Professional Conduction, rule 3-500 likewise requires that an attorney “shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.” (Ca. Ethics Rule 3-500.)
Attorney communication with clients involves more than just returning phone calls and emails. Problems can arise when attorneys fail to keep clients informed of developments in their case, significant or not. It is important to follow the basic, but often overlooked tips below to avoid short falls that may appear while litigating your client(s) case.
Initial Meeting with Your Client
Identify their expectations. No two clients are the same; they each have different objectives. This may require attorneys to modify their services to provide the proper representation for each client. To ascertain your client’s expectations, have a face-to-face meeting. Ask questions about the substance of their legal matter and their desired solution. Go over a game plan and define the scope of the work you anticipate providing.
In this meeting, you must be realistic as to the likelihood of success. It is critical to be honest with your client from the outset. Explain what to expect, including the best and worst case scenarios. Clients must understand that some aspects of their case are outside their attorney’s control.
Inform Them of Any Problems or Potential Risks
Your client must be aware that there are no guarantees in litigation – anything can happen. Keep clients apprised of how their case is moving along. This includes informing them of pleadings filed by you, the opposing party and/or court orders. Explain that through discovery, often new information is presented that can change the value of a case. If, for example, you get bad news, inform your client immediately. Don’t delay. Pick up the phone and inform them of the issue and provide suggestions for a solution. Prepare options for your client, so they can be involved in the decision making.
Communicate Fees and Costs
To avoid problems near the conclusion of settlement, a discussion of attorney fees should occur in the early stages. At the beginning of the relationship, clients should be clearly advised regarding the lawyer’s fee or percentage. The cost of your legal work may not be easy for your client to digest. Explain how this would impact their settlement by providing an estimated fee from a possible settlement amount.
Clients often overlook the cost of litigation beyond just an attorney’s fees. Attorneys must explain everything that would be deducted from their final settlement or judgement. If your firm expenses clients for postage and copies, let them know beforehand.
While moving through litigation, attorneys can realize that they underestimated legal expenses. A case can unforeseeably become more complex or additional work may be necessary, i.e., an additional expert must be retained. A discussion of cost implications must never be delayed or avoided. Also, make sure any changes to costs, specifically those that may differ from arrangements agreed to in your retainer, are made in writing. Communicating with your client – good and bad news – should become second nature. No client has ever complained because their lawyer gave them too much information.
Litigators should make sure their mutual goals with clients are not only met, but also overachieved. This does not require additional expenditures of time or money, but rather can be achieved effectively and simply by communication. Brian S. Kabateck
