Missing the Mark on Client Needs
Hanna Hasl-Kelchner is associate general counsel and national trademark counsel at Lorillard Tobacco Company in Greensboro, North Carolina.
When a business client sent a proposed storage tank installation manual to its law firm for review, it expected to receive a marked-up manuscript and revised language with an eye toward reducing legal liability. What the firm sent back instead was a well-researched memorandum of law that explained rudimentary product liability and the risk exposure that would result from distributing such a manual. Publishing equaled liability, and liability was bad. The memorandum was accompanied by a four-page cover letter. They both echoed the same sentiment and ended with the same recommendation: do not issue the manual.
The firm’s advice was ultimately useless. It was not because it was wrong but because it was inappropriate. The question posed was not “How do we make sure we can win a lawsuit?” It was “How do we minimize the risk of being sued?” Therefore, from the client’s perspective, the firm delivered the wrong product. The client already knew there was some legal risk associated with issuing the manual. The issue was not whether the manual would be published but how to publish it with the least, not zero, amount of exposure. To the company, the manual was a value-added service for its customers, and the overall business advantage outweighed the legal risk, provided the legal risk was managed properly. To the law firm, it was a legal albatross.
The law firm missed an important opportunity by not recognizing that the manual was going to be issued with or without them. As a result, they created more problems than they solved: the inappropriate advice meant someone else had to review the document, publication deadlines were missed, and the manual was brought to market later than expected. Worst of all, their advice was viewed by their client as obstructionist.
In any given matter, whether it is a storage tank installation manual review, a contract, or some form of litigation, start by finding out what your clients’ goals and objectives are. Your idea of what constitutes a winning result may be different from your clients. If, for example, a client’s goal in a lawsuit is to position itself for settlement, you may have different advice to provide than if the client is determined to go to trial. When you are reviewing or drafting a contract, it is impossible to know whether the terms of the deal expressed in the contract are adequate without understanding the underlying transaction specific to the parties.
Good communication and common courtesy are also essential to staying in synch with your clients’ business objectives throughout projects or cases. It sounds simple, but it is easy to slip up.
Take, for example, the young associate who scheduled the deposition of a third party, who he knew to be a customer of his client. The case settled before the deposition date, but the associate forgot to tell the client’s customer, who in the meantime was scrambling to produce documents for the deposition. That omission was inconsiderate and rude, particularly because the client had an important, ongoing relationship with the customer. As a result, instead of making a good impression on the client, the associate alienated the client. Better follow-up by the associate in winding down the case and awareness of his client’s business needs would have prevented the client from receiving an irate phone call from the customer.
If you want good client relationships, keep your clients’ perspectives in mind at all times and make thoroughness and follow-through your responsibility, not someone else’s. Do this, and you will be a valued member of your clients’ legal team. Ignore it, and you will become part of the problem, not the solution.