chevron-down Created with Sketch Beta.

Litigation Journal

Winter 2023 | Timing

Communicating with Clients

Kenneth P Nolan


  • Litigation is a flawed, uneven system, so be thorough and truthful.
  • Clients are your most important resource; handle with tact, intelligence, and integrity.
  • Realize that clients won’t believe you, won’t follow your advice. Persist.
Communicating with Clients

Jump to:

I’ve always told my clients the absolute truth. Well, mostly. This one time with this one client, the truth had to be massaged. Whenever I relayed a settlement offer, his response was simple and direct. “More. I want more.” “How much?” I politely asked. “More, much more.”

“Try the case” was the refrain from my office. Easy to say, but when I find a client distasteful, trial never ends well. For some peculiar reason, I’ve always lived in New York City, and I actually enjoy and admire its citizens who are, without doubt, not the easiest to love. When I don’t like someone, that person is truly awful. Juries rejoice when they toss such cases down the courthouse steps. I know—it’s happened to me.

I told this guy a little white lie—that the offer was $75,000 instead of $100,000. He cursed and moaned, but later, when I mentioned maybe, just maybe I could get $100,000, he wanted to know when he could cash the check. Yes, three Our Fathers and three Hail Marys.

Save for a few nightmares, most clients are decent, honest, and deserving of skillful, aggressive representation. But there’s an art to handling clients, which you learn through experience, by blurting something you thought hilarious—of course you can get $1 million—but which the client took as gospel. Or by relaying what was argued at mediation—she said you’re a phony who could have returned to work ages ago—pure posture, of course, but not to your enraged client, who now only wants revenge and, by the way, doesn’t care if he loses.

Clients are your most important resource and have to be handled with tact, intelligence, and integrity. Takes time, effort, and a touch of skill. And tons of patience.

Know your client. I hate this Zoom stuff. You learn nothing about nobody. I need to touch clients, stare into their eyes, examine their clothes, peruse the family photos on the wall. Sit at the worn kitchen table or on the comfortable couch in the corner office. Always look at their shoes, an old-timer once told me. You learn a lot by their shoes.

To represent them successfully, I had to know everything. Discuss family, sports, weather—avoid politics, please. Ask about work, hobbies, education. Build rapport, trust. Go back again and again. Gradually, but surely, you’ll learn if your client is honorable or a dirty, stinking liar. This also applies to corporate clients and general counsels. They demand more time since they know everything and view you as a mere serf to carry out Sire’s wishes. Make them aware of your experience, expertise, and strategy. Keep them informed and always ask for input, even if you have no intention of following it.

It’s easier to email, chat from your car, Zoom from home, and not be bothered with real people and their many disgusting habits. But you’re a litigator and people are your job. If you can’t stand them, don’t want to sit in the living room with the stupid mutt drooling all over you, become a monk. Or, worse, a tax attorney.

Find out who’s whispering in the client’s ear, pulling the strings. It’s not easy to isolate the well-meaning relative who repeats: “Don’t believe him. All lawyers lie.” And more difficult to expose the lifelong friend who just happens to have a brilliant idea for a business—all he needs is some cash. Only when you have your client’s trust can you guide your client through the rollercoaster of emotions that is litigation.

And don’t forget the internet, social media. The video of the distraught widower dancing on a table at a wedding will be thrown at you before you sit down at mediation. Your client’s Twitter, Facebook, and Instagram posts can and will be discovered. Everyone has a skeleton or two in the closet. Find out how many and how bad. Sometimes these confessions are better one-on-one. Spouses and children are often unaware of darkness on a person’s immortal soul.

Communicate. It’s easy today. Perhaps too easy. You can email, text, call from over the Atlantic, day and night. Stop complaining. As Hyman Roth said in The Godfather: “This is the business we’ve chosen.” Return calls, answer questions, even when you’re sipping a dirty martini on Turks and Caicos. If significant, I always talk in person. Clients, including corporate executives, need to be reassured, need to see your confidence, to understand that the ruling on a discovery motion is not the end of the world. Hand-holding is essential, even if time-consuming and annoying.

Bad news should never be delivered via email or phone. “You’re going to have to pay a ton of money to settle this thing. . . . No, you won’t get the millions you hoped for. . . . The judge doesn’t think we have a good case.” Be upfront. Explain over a cup of coffee. And when you screw up—we all do—don’t hide it. Deal with it. Tell your partners, determine how to advise the client, and do so. It’s going to come out, and the worst sentence ever is this: “Why didn’t you tell me about this when it happened?”

Care. I cherish my involvement with almost all my clients. They make my practice enjoyable and interesting, even the ones that still cause me nightmares. My life has been far from perfect, so why should my clients be different? I always told them about my family, my life. I wanted them to realize that I was somewhat like them, that I could relate.

I wanted them to prevail, to win, to leave the litigation happy (relatively) and satisfied (mostly). I wanted them to know that I worked diligently and effectively. Not only so they would refer other business but because I genuinely cared. I was often amazed at the beauty and resilience of those who suffered horrible injuries or those who lost children, parents, spouses. They still inspire me.

Some I couldn’t stomach. It’s difficult to ignore dishonesty and greed. One guy who lost his wife was a less-than-perfect husband and person. I begged him to settle, but he thought he could charm the jury. Even though the verdict was one-third the offer and reflected on my reputation and wallet, he got what he deserved.

Tell it straight. Hard to tell a corporate executive that ordinary citizens find him repulsive. After all, he’s on the board of a valued charity, active in the community, and an assistant soccer coach. Hard to tell him that a jury will only see selfishness, arrogance, and bigotry. Hard to tell a client that the insurer won’t pay enough for that house in Orlando, and, by the way, the jury may believe the lie and you’ll get zilch.

When to have the conversation that causes anger, even tears, is problematic. Too early in the litigation and you turn your client into an enemy, who views you as not committed to victory. Too late and there is disbelief that if it was true, you would have told the client earlier. There’s no formula. Each client has to be treated individually based on facts, law, and circumstances. That’s why it’s so essential to build rapport—to remain not only in contact, but remember birthdays, important events that broadcast concern. Without involvement, all bad news will be seen with skepticism. If your clients know and trust you, they will believe you and follow your advice—well, sometimes.

Provide proof. Lawyers have such horrible reputations that clients are suspicious of whatever is said. Even sophisticated in-house counsel. “The judge said that? Really?” “That’s a lie. No way.” Always provide proof. Give them deposition transcripts, motion papers, investigative reports, any document that supports your position. Inundate them with information. “This is where the plaintiff said you discriminated, see pages 34–38, 51–55, 87–98.” With very jaded clients, I often offered copies of every document generated. After a few months, they’d tell me to please stop. Show them you have nothing to hide.

Years ago, I tried a non-jury case before an elderly judge who reserved decision. After six months, no decision. My client would call and I’d repeat—no decision. I could hear frustration and doubt. Finally, I told her to call the judge directly. She did, but two long years passed before the verdict. At least the client knew I wasn’t lying.

“Trial’s been adjourned again?” a client asked with sarcasm. Invite them to a busy state trial assignment part. Let them see the craziness. Sitting on a hard bench for a few hours will cure them of their disbelief. And when it’s time to decide between trial and settlement, give them verdict reports, newspaper articles, all to ensure they can make an intelligent decision based on facts, not emotion.

Protect yourself. Clients are mostly nice people, but they occasionally have memory problems. “You never told me that!” Document everything. After each meeting, shoot them an email (copy to file) of what was said. “This is to confirm that you instructed me to demand . . . to offer . . .”

Realize that clients won’t believe you, won’t follow your advice. Persist. “I’m going to tell you things that you don’t want to hear.” Be direct. “You realize that if you go to trial, the jury could hit you for five times what you could pay to settle.” “You know, the jury’s not going to like you.” Sure, it’ll strain your relationship, maybe even ruin it, but would you rather have to notify your malpractice insurer?

Whenever a case settles during trial or mediation, question the client under oath to ensure no misunderstanding. Go through the litany—“You had a right to go to trial . . .” Even when you love your clients, remember they are all potential plaintiffs.

Clients often walk away unhappy, believing they should have paid less, received more. Take comfort in the knowledge that litigation is a flawed, uneven system. Be thorough, be truthful, and occasionally you’ll sleep at night.