Recently I ran into a fellow lawyer at a seminar. She had just lost a key client and did not know why. The lawyer had explained all options to the client and confirmed the lawyer’s recommendations in writing. The client rejected her advice, took the wrong path, and suffered a significant loss. The lawyer faulted the client for not understanding the lawyer’s painstakingly clear legal analysis and well-drafted risk and recommendation letter. Apparently, her client had morphed into one of “those clients” that would not take good counsel. She asked me, what do I think?
What I think and what I will say, in this case, to my fellow lawyer are two different things. I will tell her that I understand her frustration and agree that there are difficult clients out there. I will wish her a better outcome with her next client. I will also suggest that she read Client Science – Advice for Lawyers on Counseling Clients through Bad News and Other Legal Realities.1And as to what I think but will not say? I am thinking that my fellow lawyer may have just needlessly lost a good client.
Lawyers cannot afford to lose good clients. Clients gravitate towards lawyers that understand them, and explain the legal process and case in a way that the client can understand. Client Science makes some key points in this area, and others that merit a careful read. Read on to see if you recognize areas of possible improvement.
A. The Built In Communication Divide between Lawyer and Client
Lawyers don’t talk like ordinary people. Clients are ordinary people. This is a problem. Like doctors, computer coders, and engineers, lawyers may communicate by technical jargon incomprehensible to the client. Furthermore, as Ms. Aaron explains in Client Science, a lawyer’s advice and counsel rest on a platform of legal knowledge, culture and experience unknown to the client. Thus, concepts like personal jurisdiction, venue, preliminary injunction, motion in limine, motion for summary judgment, and burden of proof bounce off a client like buckshot on steel.
According to Ms. Aaron, three difficulties exist in this area: (1) many legal words have no, or uncertain meaning to the client without definition; (2) many words may mean different things to the lawyer and the client; and (3) words in the legal context may carry embedded, unrecognized concepts not known to the client.2 The lawyer must overcome these difficulties when communicating with a client, much as an experienced translator would.
Ms. Aaron recommends that before speaking with a client a lawyer should note which words and concepts were unknown to the lawyer before entering law school. The lawyer should then define and explain those words to the client in language the client can understand.3 The lawyer must also explain the underlying legal process, practice, and culture before the client can be fully informed.4 The lawyer’s words and advice – even if carefully explained — will lack meaning without this context.5
B. The Lawyer should understand the Client’s legal knowledge base
In this process, the lawyer should ask the client to describe prior experiences with the legal system. Using active listening, the attorney can then determine how much or how little the client knows of the legal process and culture, and where the lawyer must start.6 Ms. Aaron cautions that clients hold different individual experiences. Stereotyping the client may mislead the lawyer about the client’s experience with the legal system.
Before advising the client on the case at hand, the lawyer must also determine what the client understands about the case. Ms. Aaron recommends that the lawyer ask the client to explain where the client thinks the case is in the overall legal process.7 This will show the lawyer how little or much the client understands about the case, and how the lawyer should communicate options to the client based on that level of understanding.
C. The Lawyer should understand the Client’s Myths and Beliefs
To fully counsel clients, the lawyer must also understand what the case means to the client.8 Many clients maintain cultural myths and incorrect beliefs about the legal system. They incorporate these myths and beliefs in their perceptual set of the case. The client may reject legal advice from the lawyer if it conflicts with the client’s myths and beliefs.9 For example, many clients believe that a trial reveals the real truth, and that a jury decision is always fair and right.10 Others believe that a verdict will publicly vindicate or correct a wrong, or force corporations to change practices.11
The hidden myths and meanings often explain why a client will reject a settlement or negotiated transaction when it makes perfect legal and economic sense to accept the offer. For many clients, it is not about the money. Notions of pride, honor, loyalty, integrity, and right and wrong may be more important to a client than settling a matter on rational economic terms.
According to Ms. Aaron, the first step in addressing this situation is to understand. Ask the client directly what the case means to him, and why he has decided to accept or reject the lawyer’s recommendation.12 The answer may reveal that the client’s value system and identity have created objectives in the case that are more important to the client than rational economic interest. If so, the lawyer does best when she adopts the perspective of the client, and advise and counsels in the context of that value system and identity.
Ms. Aaron suggests that if the client’s value system and beliefs are driving his decision-making, the lawyer can show the client that the perception is not the only truth. For example, perhaps a client suffered injury in a grocery store and believes that the corporate owner should be held accountable. The client therefore resists a settlement which is low, but which reflects problems with the client’s liability case and pre-existing injuries. The client rejects the offer because he wants to “stand up for the little guy” and in his mind, the offer is low. Therefore, the corporate owner has not noticed the injury, and will not do anything about it.13
While this may be a “truth” to the client, there are equally valid alternative truths. The corporate owner knows of the case. It based the settlement offer on the client’s out of pocket costs, meaning that it was not a nuisance offer. Additionally, simply by filing the case and providing deposition testimony, the client has placed the corporate owner on notice of a dangerous condition. This means the “little guy” that the client is concerned about already has a benefit if the corporate owner does not remedy the condition. And if the client proceeds to trial, and a jury finds against the client, then the opposite can occur. The “little guy” now will have a much harder time with his later injury.14
D. Counseling the client towards a broader understanding of the case
Exposing the client to alternative perspectives that align with the client’s values and belief system can free the client to make a choice based on that broader understanding of the case. 15 Ultimately, the choice remains with the client. The lawyer executes the decisions of a fully informed client. Ms. Aaron distinguishes between giving the client incorrect advice – such as saying there is no chance of defeating a summary judgment motion when a small chance exists – and providing an alternative framework for viewing the case consistent with the client’s value system and beliefs. The former undermines the attorney- client relationship; the latter enhances it.
E. Know the client’s priorities and how the case fits with them
Separate and apart from the client’s value and belief systems, the lawyer must also appreciate the client’s personal and professional priorities, and how those priorities may influence the client’s approach to the legal matter. No case occurs in a vacuum. The client’s situation outside the case may ultimately determine how the client disposes of the case. A business that is fighting to survive for a year and which must win at all costs to survive differs from an established business that seeks to minimize litigation costs and concentrate on its core business. Similarly, an individual client who is relying on a litigation to fund college tuition and pay off debt is not the same client who has achieved financial independence and is comfortably retired. The lawyer must appreciate these background realities for the client.
F. Seeing the Elephant in the Room – The Client’s Emotions
Client emotions are impossible to ignore.16 Lawyers do so at their peril. This holds true in the courtroom, when negotiating, and when advising clients. The lawyer must understand and address the emotions between the parties, or the client’s emotions as to the case. Otherwise, the lawyer cannot effectively advise a client, or establish the necessary professional relationship.
Ms. Aaron advises that where emotions run hot and deep, the lawyer should be curious and gently probe for their source.17 The lawyer is not a counselor or therapist and should not become one. However, the lawyer can show the client that the lawyer “gets it,” i.e. truly understands why the client holds the emotions displayed. This may allow the client to be more receptive to the lawyer’s recommendations and message.
Client Science runs 270 pages. It contains many insights into how lawyers can best serve their clients and understand the client’s perspective on a legal matter. It is worth a read to give our clients the service and respect that they deserve.
1 Marjorie Corman Aaron, Client Science — Advice for Lawyers on Counseling Clients through Bad News and Other Legal Realities (Oxford University Press 2012) (“Client Science”).
2 Id. at 38-39.
3 Id. at 40.
4 Id. at 43.
5 Id. at 43-48.
6 Id. at 50-53.
7 Id. at 52.
8 Id. at 48.
9 Id. at 48.
11 Id. at 50.
12 Id. at 75.
13 Id. at 76.
15 Id. at 77.