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May 19, 2011 Articles

Shedding the Aura of Doom and Becoming a Likeable Lawyer

This is a starting point to help you put down the scythe, shed the aura of doom that your clients may now sense, and turn yourself into a welcomed business asset.

By Carol Dominguez Shay

A client I met for lunch a few weeks ago said good-bye with the following words: “I hope I don’t see you again for a long time because when I see you it means we have trouble.” In other words, clients look forward to meeting with an employment-defense lawyer about as much as they look forward to encounters with the Grim Reaper.

This article is well intentioned and earnest, but it is realistic. You will not magically transform yourself from Grim Reaper to Santa Claus simply by reading these tips. But they are a starting point to help you put down the scythe, shed the aura of doom that your clients may now sense at your appearance, and turn yourself into a welcomed business asset.

These tips simply address the basics of personal and professional interactions with clients. Obviously, many other skills must be honed to develop into a seasoned employment lawyer, and you are encouraged to seek resources to help you acquire and refine those skills.

Like Yourself and What You Do
We’ve all heard the old adage that it’s better to have a treating doctor or a defense lawyer who is a competent jerk, rather than one who is incompetent but friendly. Yes, this is true. But the qualities of likeability and competence are not mutually exclusive.

It’s common sense that a person in any field will be happier and more successful if he or she enjoys the work. If you are having trouble interacting with clients or facing your caseload, ask yourself whether you enjoy practicing employment law. This large body of law offers numerous nooks and crannies for those who want to focus on particular areas. If, for example, you are unhappy dealing with the technicalities of wage and hour claims, is it possible for you to shift your practice to concentrate on disability or other issues? If you run through the gamut of employment and labor law choices and are still unhappy with the work, consider another area or another profession entirely. Easier said than done, but with life (both your own and your clients’) being short, misery and its consequent effects on your personality are simply not worth it.

On the topic of a short life, try to respect/observe/acknowledge (if you want to choose one, I like respect) the work-life balance. If you start resenting your clients’ problems and the work hours you are putting in to fix them, you will jeopardize your relationships with yourself, your family and friends, your colleagues, and even those pesky clients. Resentment, even the carefully managed kind, eventually expresses itself somehow.

I am ashamed to admit that, in his barely five years on this planet, my son, Nathaniel, has already acted as a mini resentment-expressing “wake up call” on several occasions. Some cringe-worthy and heart rending examples: An 8:30 p.m. phone call to my office asking why I hadn’t come home to tuck him in; a digital kiddy camera full of pictures of me talking, typing, and looking at my BlackBerry, oblivious to the fact that I was being photographed; and a post-bedtime visit to my home office asking me to “put down the computer” and give him a hug. A combination of these incidents, along with thoughts of his sweet, innocent face hastening toward acne followed quickly by beard stubble every time I heard songs such as “Cats in the Cradle” or “There Goes My Life,” led to an immediate job and schedule change. (For attribution purposes: “Cat’s in the Cradle” is the timeless guilt-inducing classic by Harry Chapin about a son too quickly growing older, independent and college-bound, while his father toils at work. “There Goes My Life” is a more recent Kenny Chesney tear jerker about adaughter too quickly growing older, independent, and college-bound). When I asked him for advice for this article, Nathaniel said, “Tell lawyers to take time to pay attention to their kids.”

As Oliver Wendell Holmes correctly noted: “Pretty much all the honest truth-telling there is in the world is done by children.”

Expertise, Competence, Working Knowledge, and the Basics
Establish expertise in at least two areas of employment/labor law, competence in several more, working knowledge of most, and an ability to quickly figure out the basics of the rest. On to the hard facts—a likeable employment lawyer must be able to quickly and efficiently give competent and reliable legal advice. This is more difficult than it sounds.

The scope of “employment law” covers basically anything that happens in the 8–10 hours (or more) millions of individuals devote each day to traveling to and from work, interacting with others during work hours or on company premises, and presumably enjoying the fruits of their labor (salary, benefits, taxes) after the work day is over. Even after the employment relationship ends, there are laws that govern the unemployed or retired. In addition to this enormous body of law, there are infinite ways for employees (from CEOs to the rank and file) in every type of company to create bizarre, sad, scary, and/or hilarious situations. It is impossible for any lawyer to truly “know” all of the employment laws applicable to any given industry in every unique situation.

Here are a few issues I (or, in the first case, a Las Vegas colleague) have encountered over the last 14 years of practice:

  • Must an employer allow an employee with anxiety problems to bring a boa constrictor to work as a comfort/aide animal?
  • Does an Anglo employee’s alleged “recovered memories” of going to “pow-wows” with her grandmother as a young child, which she expressed to coworkers before her termination, entitle her to state a claim for national origin discrimination as a Native American?
  • Is it an unfair labor practice for an employer to provide a purportedly insufficient supply of toilet paper to the women’s restroom?
  • Should an applicant’s failure to disclose his or her guilty plea to the crime of public defecation result in rescission of an employment offer?

To preserve the attorney-client privilege and, more importantly, the very real possibility that my legal advice or defense of these interesting issues could and would be contradicted by all of the unlikeable employment attorneys out there, I will not disclose the given answers to these questions.

The point is that the employment lawyer must establish credibility with his or her clients by fielding such strange issues with a rational, legally based response. Developing expertise in at least two broadly applicable areas of employment law (e.g., the Americans with Disabilities Act and the Fair Labor Standards Act), competence in several more, working knowledge of most, and an ability to quickly figure out the basics of the rest will empower an attorney to provide mostly, or at least arguably, sound advice in response to crazy situations.

Establish Trust by Calmly Delivering the Right Advice the First Time
These unique situations, coupled with clients’ seemingly ever-present need for an immediate response, lead me to my next point. The likeable employment attorney must not enable, encourage, or participate in a client’s hysteria no matter how grave the situation. Panicked attorneys deliver bad and injudicious advice very quickly. Such advice is usually based on fear and a faulty expectation that something . . . anything . . . must be done or said at once!

When an employment attorney allows a client’s unfounded sense of urgency to drive the legal strategy or solution, the outcome is likely to be bad for both the client and the attorney. After such hastily delivered advice is conveyed up the client’s management chain and relied upon for business decisions, it is difficult, embarrassing, and relationship-impairing for an attorney to have to retract his or her initial advice and replace it with a more thoughtful and legally accurate opinion. In other words, research, think, and even consult with others before responding to most issues.

In the rare event that a client truly does need an immediate response (e.g., an employee death or threat of workplace violence), first ensure that your client understands that your advice is based on developing facts and may have to be revisited once the “dust settles.” Next, partner with the client to understand and objectively think through any business needs that may and will affect not only their willingness to follow your legal advice, but any subsequent legal strategy that might be necessary.

For example, in the event of an employee death, the Occupational Safety and Health Administration in most states must be notified within a certain short time frame. But instead of simply delivering this legal directive to an understandably frazzled client, listen to other needs that may appear tangential and non-legal now, but which could affect your defense of the matter in the near future. Aside from the obvious preservation-of-evidence issues, ask about matters such as planned workforce-and-media communications. These concerns are not explicitly legal ones now, but they need your attention. The client needs your analysis and input on how a poorly implemented communication plan could result in a lawsuit by any number of individuals based on theories of employer negligence, defamation, invasion of privacy, etc.

Consider developing either a general or client-specific crisis checklist/plan before a disaster occurs. An objective tool such as this will help you and the client remain calm in times of stress.

Often, employment matters involve personal issues (e.g., an employer singling out and holding an employee accountable for behavior) and money. Not unlike family law, the combination of these two elements makes for high drama and emotion. When situations get particularly heated and the client has obviously tolerated too much or waited too long before taking action, the client might instruct you to “go for the jugular.” Related to the tip above, you should not let a client’s anger and emotion preempt common sense, sound legal strategy, or professional behavior.

Yes, a client may want to immediately terminate an employee who has become hostile, insubordinate, and non-productive. But, although your client may simply be seeking your tacit approval of an action already decided upon, your job is not to jump on the bandwagon. Rather, you must evaluate the facts and the law objectively to help the client understand and consider any legal and business risk that might be overlooked in the heat of the moment. Ultimately, the business decision is the client’s, but you will have done your job if you properly advised of the associated consequences.

As a side note, a directive to be the client’s “pitbull” in court or with opposing counsel should also be avoided. Zealous representation has its place, but the applicable rules of professional conduct are your “floor” of behavior and trump a client’s emotionally charged instruction to do something unprofessional. In fact, when you have an unreasonably angry client, you can use the rules as a shield to explain why you cannot and will not engage in certain acts or behavior.

If you act according to the above and your client does not follow your advice or fires you, you will have maintained your integrity and performed your job appropriately. Moreover, the satisfaction of knowing these two things relates back to the first principle of living with and liking yourself.

Sense of Humor
After you have established your competence, objectivity, and professionalism, and your clients trust you, it is very helpful for a likeable lawyer to invoke a good sense of humor. This means the ability to laugh at yourself as well as the strange situations you and the client must face together. For me, this is what makes my job not only tolerable, but enjoyable. I like the clients I work with, and I have fun helping them.

Establishing healthy and fun relationships with clients and coworkers is not only a good way to live, but it’s also a great marketing tool. When clients enjoy being around you, they will be more likely to call you for preventive and training reasons, and they will refer you to other clients.

Here are some recommended resources that may help you on your path to becoming a likeable lawyer:

YouTube. Instead of confusing a client by referring to statutory citations or regulatory prohibitions without context, pull up a clip of The Office to illustrate the dangers of certain behavior. There is also a wealth of bad and good deposition examples that, in addition to the standard and necessary preparation, can help you educate a client in a fun and understandable way. And, if your client goes south, (privately) watch the Seinfeld clip of lawyer Jackie Chiles admonishing client Kramer for “putting the balm on.”

Music. I love music of all types and regularly use it to get my game on. Consider making a playlist or CD for yourself of positive, affirming songs to pump yourself up when the going gets tough or when you’re preparing for court. It’s a bit silly, but it works!

Network. There are thousands of us who have “been there before.” You can find blog discussions, organizations and coworkers to help you think through situations and share resources. Although every situation is unique, you don’t have to re-create the wheel when it comes to fashioning a legal strategy or response. Look for and use human and other resources. It will improve your efficiency (to the satisfaction of the client) and will help you see and address potential issues you might not otherwise have thought about.

When you’ve done all this, you can go home and pay attention to your “kids” (herein defined as yourself, your spouse or partner, your family and friends, your pets, your plants, etc.).

Have fun!


Carol Dominquez Shay is a partner with Conklin, Woodcock & Ziegler, P.C. in Albuquerque, New Mexico.

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).