GPSolo Magazine - April/May 2006
How to Admit You Don’t Know
Our clients expect us to advise them quickly and cheaply about their legal rights. Being loathe to admit that we don’t know an answer, we’re usually afraid to reveal our ignorance, or even uncertainty. After all, we are professionals with post-baccalaureate degrees that took a number of years to complete. How can we not know the answers?
Unfortunately, the level of certainty that many clients expect is unrealistic in today’s legal climate. So why is our knowledge becoming less and less precise, and how can we guide our clients without exposing ourselves to civil liability?
Why We Know Less and Less
Lawyers truly exemplify the concept that professionals are engaged in lifelong learning. Becoming and remaining competent requires every lawyer to keep current with unending legal developments. It is humbling to look at law texts that are only a few years old and realize how much has changed since they were published—and the more experienced you are, the more things have changed.
Being in a profession with constant change means that there will be no end of questions for which we simply do not have ready answers. Although the U.S. Supreme Court has reduced its caseload dramatically in recent years, most practitioners feel that the federal circuit and district courts, the U.S. Congress, and state courts and legislatures have made up for it by increasing the volume of law that they produce. It was daunting for me to realize, for example, that our state courts in California generate more than 10,000 pages of new decisions each year.
So as a practical matter, we will rarely have a definitive answer to a legal question. Consider the following structural and psychological elements of the legal profession that contribute to the problem:
• Imperfect specialization. All professions specialize to some extent, but unlike medicine and insurance, in the law there are very few national standards that recognize a particular specialization. As a result, it is often difficult to make a living as a true specialist because there is no effective imprimatur of an organization certifying you as an expert. Unless you can define your practice in such a way that you can truly be on top of all developments in a narrow field, you have to be more of a generalist.
• You can’t get too specialized. The flip side of imperfect specialization is that most lawyers can’t afford to be overly specialized. If you are a good business litigator who’s litigated mainly contractual disputes, you still may want to take on a trade secret case, even though you don’t know as much about that area of law or practice. Indeed, getting new cases in a new area is often the way we develop expertise.
• Law does not really lend itself to specialization. The skills necessary to be an effective lawyer, whether in litigation or transactional work, are considerably broader than in many other professions. If you are drafting contracts, you not only have to know contract law but may need to know about security interests in personal, real, and intellectual property, tax consequences of the transaction, and a whole host of other issues. Litigators have to know not only the rules of procedure and evidence, but also the industries and business of the clients they represent (or that they sue) and the substantive law involving their particular area of practice. That’s a lot different from a scientist studying a narrow wavelength of silicon emissions.
• A complex society constantly generates new and interesting legal problems. Our dynamic society changes constantly, usually faster than the law can keep up. The good news is that we get nifty new technologies such as personal computers with astonishing speed and power, cheap cellular phones (probably a mixed blessing), and the Internet. On the other hand, we have technology charging into new fields where law has been reluctant to tread. Take a look at the cases involving the revolution in biology and the commodification of cell lines and body parts to see how quickly technology can outrun the law and leave us applying legal principles that were well adapted to tracing stolen horses but not so good at describing rights and liabilities in the brave new world.
So the prospect of having a definitive answer to any legal question off the top of your head is probably unrealistic in most cases. Further investigation and work will be required. How do you explain this to the clients?
Educating the Client
Most defense lawyers will tell you that problems resulting in fee disputes, malpractice claims, and ethical complaints usually arise because of communication problems between the lawyer and the client. It is therefore critical that the client understand, at the beginning of the litigation, what you can do with little preparation and what will require work.
First, don’t be afraid of explaining to the client that law is a constantly changing and evolving subject. We’ve all seen lawyers get embarrassed in court when the law has changed (and sometimes, alas, we’ve been embarrassed ourselves). A client who understands that most claims have complexity to them is more likely to understand that you may not have a definitive answer. Even if you lose the client because you’re careful and informative, you may simply have avoided a problem client down the road who wouldn’t pay your bill or, worse, would accuse you of malpractice.
Second, you can certainly discuss general principles of law with enough subtle qualifications to avoid promising the client too much. The client needs to understand that laws change and that today’s answer may not hold tomorrow.
But above all else, be extremely cautious about expressing any kind of an opinion outside of your area of expertise. If you step into a case that requires specialized knowledge and expertise, you will be held to the standard of an expert having that specialization, even if you don’t. Even the most naïve client understands that all professionals specialize; don’t be afraid of telling them that a particular question is outside your area of expertise. They wouldn’t go to a podiatrist for heart surgery; why would they go to a personal injury trial lawyer for tax advice?
Expanding into a New Practice Area
The trickiest situation is when the client brings you a problem that is close to, but not precisely within, your area of expertise. Before you venture an answer, or even decide that you’ll undertake the research, ask yourself whether it makes business sense for you to find the answer. If the question will require several hours of work in an area that you really can’t stand, you will be better off referring the client to someone who can answer the question more easily. If, on the other hand, this is an area where there may be some synergies with your existing practice, consider exploring the area.
Recognize up front that you may have to eat some of your time getting acquainted with the area. You are acquiring human capital here, but such acquisition is usually paid for by the lawyer, not by the client. Getting acquainted with a new area of law usually isn’t a proper subject of billing.
You may be in a truly new area of the law where nobody has any expertise, or the extremely rare case where your client wants to pay you to become an expert in the area. In those cases, it’s fine to admit that your initial answers could change dramatically; just be sure you advise the client in writing. (See the sidebar “Disclosure: A Pretty Word for CYA,” at left.)
Show the Client Your Progress
Not knowing an answer isn’t a problem unless you don’t learn the answer. In this respect, anything you can do to show the client that you are filling in the gaps in the case is helpful. Many lawyers are memo writers and share their work product with their client as they resolve the various legal issues. Others prepare letters to the client outlining the likely resolution of the issues.
A neat new tool that many lawyers have been using effectively is CaseMap from CaseSoft ( www.casesoft.com). CaseMap allows you to track documents, facts, witnesses, issues, and even legal questions and evaluate whether they help or hurt your case. Many lawyers have found sharing the CaseMap data with clients not only prompts their clients to identify gaps in the facts that the lawyers may not yet have discovered, but can be an impressive demonstration of how much progress is being made.
With the rapid pace of change, no lawyer can keep up with all developments in the field. Don’t be afraid of telling your clients that you don’t know the answer to a question they pose. If you can show them that you will find out, they will appreciate and, in most cases, reward your frankness and honesty.
|Disclosure: A Pretty Word for CYA|
If a client wants you to handle an area where you have some knowledge but no expertise, the key to success is a combination of planning and disclosure.
Assuming that the new area is one that makes sense for you to get into, it’s still important to notify the client that this is not your area of expertise. Your local state ethics guidelines may or may not require you to make such a disclosure, but it’s foolish not to do it. Without such a disclosure the client may be surprised at the size of your bills or the speed at which you can develop your case. Get everybody on the same page; make the disclosure. Remember that the less you know about an area, the more thorough the disclosure should be.
|“Beats Me, Your Honor”|
You worst nightmare (relating to your law practice, at any rate) is an unexpected question from the judge about which you have no clue of the correct answer.
Two responses are necessary, one immediate, the other after you get back to your office. First, don’t panic. The question may be completely off base and have nothing to do with your case and more to do with the judge thinking about something different.
Second, don’t panic even if you have that sinking feeling in your stomach that you’ve missed something. Acknowledge to the judge that you hadn’t thought about the issue in that particular way and would like a chance to think about it, preferably overnight. If the judge is coming up with something new, chances are that opposing counsel hasn’t thought about it either, so some delay in responding will probably be appropriate. Ask for a delay to consider it; nine times out of ten, you’ll get it.
As soon as you get back to your office, drop everything else (except anything you’ll be sued for not finishing today) and find the answer, fast, to the judge’s question. If you have to stay until midnight, do it. Figure out whether you’ve truly missed an issue in the case, and determine its relevance. In many cases, you’ve been handed a red herring. If you have missed something important, make sure you learn everything about it and be prepared to address it.
In the unlikely case that your opponent raised the issue and you missed it, you’ll have to take your lumps. But like all unpleasantness, it’s best to get it out in the open and deal with it now, rather than letting it fester.
Joseph M. Hartley teaches law at Concord Law School and lives in Santa Monica, California. He can be reached at firstname.lastname@example.org.