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March 01, 2016

Sidebar: How to Deal with Clients

It doesn’t matter if your client is a sophisticated general counsel or a mug who never made it past sixth grade. They know best.

Kenneth P. Nolan

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I never had a dog. And never will. But I get it, I really do. Unlike children, dogs love you unconditionally, and even in a depressing world of unimaginable terrorism, heartbreaking poverty, and the nauseating smell of the slob next to you on the R train, their tails wag and eyes dance whenever you walk in the door. As a neighbor remarked: I have a wife and four kids; the dog’s the only one who’s happy to see me. But please stop telling me how Mr. Biggs or Coconut or some cute little fuzz ball cries when you leave or jumps on your lap to watch Downton Abbey. I really don’t care.

Despite my aversion to any creature who is perpetually happy, I always pretended to love some big fat mutt barking like a lunatic, jumping all over me, slobbering on my Paul Stuart tie. After all, I was sitting at my clients’ kitchen table, and my job was to discuss settlement, prepare for trial, or explain for the 49th time that this lawsuit would never allow them to escape to Port St. Lucie no matter how long they remain out of work. They are your clients, and you, the big kahuna lawyer, have to cater to them. So you can’t shriek: “Get the hairy, filthy animal off me.” Or “Stop with the incessant Insty or Facebook photos—it’s a dog, for crying out loud.”

You sit there smiling, sipping the too sweet coffee, trying to concentrate while Brutus yaps and paws and runs amok. This is what you have to do whether you represent simple schlubs or a CEO with the private jet and perpetual tan. All clients have dogs—in one form or another—and your job is to deal with the idiosyncrasies, the predilections, the craziness they bring to every lawsuit. For if you’re too arrogant or just plain rude, you’ll never be recommended, never retained. Inventory will dry up, receivables will evaporate, and in no time, you’ll wish you took that civil service test like your mother wanted.

It’s not easy. In litigation, the few redeeming qualities are overshadowed by greed, deceit, and selfishness. You are bound to represent them zealously and competently ever since the lucky day the retainer was signed. Most clients are omniscient—they know what questions to ask, what witnesses to subpoena, what strategy will bring victory. During the long years of litigation, whenever you hit a pothole, you will be reminded, in a voice of disdain, how you’re screwing up. It doesn’t matter if your client is a sophisticated general counsel or a mug who never made it past sixth grade. They know best. In a recent Mafia trial, the 80-year-old defendant, accused of murder and taking part in the Lufthansa heist of Goodfellas fame, complained to the judge that his lawyers weren’t aggressive when cross-examining the government’s rats. You think he apologized after the acquittal? You just can’t win.

Have patience. Certainly my most difficult task. Even on the golf course, I am constantly ordering my pal, Kevin Scanlon, to hurry up, hit the ball already, drive the cart faster, will ya. But you can’t badger clients like I do Kevin. You have to explain the process, the terminology, which is alien to those who can’t fathom why the judge hasn’t tossed that piece of crap lawsuit in the dumpster. You must painstakingly describe how the judge has hundreds of cases, how your opponent has rights too, how it’ll take a few years, yes, years. Repeat this every few months, building knowledge and rapport, reminding them when a prediction comes true. Then email a summary of the discussion. You’ll have proof a year later, when you hear: “You didn’t tell me that.”

Some never accept your word. All lawyers lie, they believe, and nothing will dissuade them. Send them documentation—motion papers, discovery responses, deposition transcripts. Inundate them with proof that you aren’t ignoring their lawsuit. And if they are still skeptical, drag them to court. Let them witness the zoo that is a busy state court. Let them hear your adversary belittle liability and minimize damages. Make sure that by the time trial looms, you trust each other. You’ll need it.

Face to face. Electronic communication is wonderful but impersonal and limiting. An emoji doesn’t reveal true feelings. Old-fashioned conversation allows you to assess your client, read the body language, evaluate intelligence and motivation. Even in a simple car crash, the spouse, children, or close friends are often present. By meeting in their home, you’ll learn who’s calling the shots and whether that person is selfless or looking for a “loan” the moment the check clears.

You who grew up with email, texts, and the Internet don’t understand how essential conversation is for litigators. After all, how can you master the art of oral communication when your eyes are always glued to an iPhone? As my cousin Courtney said of her 14-year-old son: “Jack asked out a girl to a school dance. Well, I mean, he texted her.” Sit on the plastic slip-covered couch and discuss sports, family, Donald Trump. Learn your client’s needs, fears, aspirations.

Build a relationship so when you must choose settlement or trial, your client will listen. Clients won’t always follow your recommendation, but at least they’ll decide based on knowledge, not what the dope down the street told them. Years ago, I was brought in to try a death case. I had never met the husband and his family. After a week of testimony, the substantial settlement offer remained on the table despite evidence of my client’s estrangement from his wife. Take the money, I pleaded. Never, he railed. I want justice, the jury to decide. I tried a few more times, then finally gave up: Ok, have it your way. You’re making a mistake. See you Monday morning. The verdict, much lower than the offer, never made my list of accomplishments. He didn’t listen because he didn’t know me. Had I been involved since the beginning, I wouldn’t have won the firm’s Verdict of the Year award.

Tell the truth. Easy to hide the decision gutting your damages, to broadcast success when you’re going down the tubes. Maybe your luck will change, the judge will reverse herself, the Cubs will win the World Series. Ain’t gonna happen. Break the bad news immediately. Admit fault, explain the ramifications, and move on. Eventually, the client has to be told. Most people can deal with adversity as long as it’s admitted in a timely and straightforward manner. Waiting to the eve of trial destroys trust and compels your client to dream of even more riches from a legal malpractice suit. No one likes a sneak, a liar.

Respond immediately. I really can’t remember how I practiced in those medieval times of typewriters, books, and home telephones. When I’d return from lunch, a pile of messages would await. Before GPS, I would drive around, map on my lap, searching for some hidden suburban street. Oh, did we ever have it rough. Electronic communication makes it easy, but you’re on duty 24/7. No excuse to ignore a call even if you’re on the beach in St. Bart’s. A pain, of course, but part of the job. How can you be successful if you can’t spend 15 minutes discussing a problem while sipping a mojito?

Prepare. I’m not talking about learning the facts, the law. Yeah, you have to know that, but prep your clients. For depositions, meet three or four times. A marathon session is useless—after an hour, they’re bored. Meet your client a month before, then a few more times as the date nears. Waiting to the last minute is disaster. Find the time. Most believe that lawyers will trick them into saying something that will ruin their case. Overcome those fears.

We were raised never to complain: “What are you, a baby? Stop crying.” We respond “Fine” to “How are you?” even if we’re ill. If you represent one who has been wronged, don’t allow your client to minimize the hurt, depression, anguish. This is most difficult for hard-working, honest people who sacrifice daily for family. Hyperbole is unnecessary, but ensure that your clients provide a detailed description of the pain or disability. 

Teach your clients how to dress, act, and react in this world of endless mediations. Don’t forget co-counsel are clients too. I represented a married couple killed in a plane crash. Both were in their 40s, no children, earnings nearly equal. They were referred by different estate lawyers. At mediation, the lawyer for the husband nearly kissed the insurer when he made the initial offer. An hour later, the wife’s counsel didn’t react (after I warned her). We recovered more for the wife because the insurer knew the husband’s local lawyer wanted the dough.

Be solicitous. Especially of in-house counsel, even if they’re relatively young. You may be more proficient, but involve them in the litigation, listen to their misgivings, explain your plan. I didn’t do that once and then had to explain to the senior partner why they wanted to fire us. Couldn’t sleep for a month.

Clients pay the bills and are a source of future business. Even if you don’t like them (and some I despised), treat them with respect and dignity.

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA Publishing), is counsel to Speiser, Krause, Nolan & Granito, Rye Brook, New York.