Wisconsin
Lawyer
Vol. 81, No. 3, March
2008
Managing Risk
The Art of Client Selection
Turning down cases isn't easy, but sometimes it's necessary. Here are
some things to think about when deciding whether to represent a
potential client or accept a particular legal matter.
by Thomas J. Watson
Like any business, running a law firm is a highly competitive
endeavor.
There are plenty of choices for the consumer. Practicing law requires
many skills,
and especially if you are running your own firm, that includes bringing
business
in the door. Developing or expanding a law practice isn't easy,
especially for
solo practitioners competing with larger firms.
Even in large firms, a lawyer often is measured by how much
business he
or she brings into the firm. Given all these pressures to attract new
clients
or new work in a different practice area from existing clients, how
should
meticulous client selection come into play in determining whether to
accept a
legal matter?
Saying "No"
Thomas J. Watson, Marquette 2002, is senior vice president and
director of communications at Wisconsin Lawyers Mutual Insurance Co.,
Madison.
You probably have more than enough files to keep you busy. You may
have too
many or the wrong kind. Facing real people in real crises makes it
difficult to
always make the right decision about which legal matters to accept. And
turning away business is never easy. Solo practitioners and small firms
often feel
they cannot be finicky about the clients or legal matters they
choose to accept.
Lawyers accept cases for different reasons, and sometimes they
live to
regret their decisions. If you're like every other lawyer, you have felt
that
regret. Sally Anderson, vice president of claims at Wisconsin Lawyers
Mutual
Insurance Co. (WILMIC), says, "If I had a nickel for every time I
heard one of our
policyholders involved in a claim say `I never should have taken that
case,' I'd be
a rich woman."
As Anderson likes to say, "No" is a complete sentence.
There are times
when you simply have to turn away business. "Lawyers need to
believe they can
say `no' and the phone will ring again. It doesn't take long to learn
the
clients you shouldn't have taken."
For newer lawyers, knowing when to say no is not easy.
"When I was a
new lawyer, I wanted to help every client who called, whether their case
was
viable or not," says Milwaukee-area attorney Kelly Centofanti.
"I learned early
on, thanks to my mentor, that if we try to help every client and sink
our
practice, we will never be able to help anyone. Over the years, that
advice, coupled
with time pressures, has helped me to `just say no' to the iffy cases or
the
problematic client."
Whitewater attorney Mark Bromley agrees. "I'm more
selective now. In
the close call cases that I do take, I confront problem attitudes
immediately
and forcefully. If the problem attitude doesn't go away, the client
does. I
get excellent client compliance that way."
Red Flags
So what factors should be considered when deciding whether to take on
a
client or legal matter? Consider seven red flags that lawyers should be
aware of.
1) You want to take the case for financial
reasons. Green Bay attorney Mark Pennow says greed can overtake even
the best-intentioned lawyer.
"It's tempting to take everything that comes in the door. Even with
experienced
attorneys, the seduction of a big payday can lead one to take a case
outside of
one's competence, either by virtue of its size or its subject matter, or
both."
Centofanti says, "I think younger lawyers, or inexperienced
ones, or
those without enough business, clearly take cases they shouldn't take. I
see it
all the time." Centofanti urges lawyers to resist the feeling that
they must
get business of any kind. Instead, she suggests, use some time for
family or
hobbies. "It's a concept I call `I would rather be horseback
riding.' It is a
mistake to take a case just to be busy."
What's the best way for lawyers to avoid this trap? Bromley says
the
school of hard knocks taught him this lesson. "I've failed some of
those courses
more than once. Every time I think I've graduated, I find myself
repeating a class."
2) You are not the first lawyer. Some lawyers suggest
staying away
from representing a client who has already had at least one other
attorney. First,
it may be an indication that the client will never be satisfied no
matter who
is representing him or her, "especially if you recognize the names
of the
previous attorneys and they have good reputations," Pennow says.
Second, Centofanti says there's the matter of splitting fees.
"In the
contingent fee setting, the first lawyer who has a signed contingent fee
agreement
has the right to the entire fee. You must persuade a court to give you
some
amount, based on the work you have done and how much work was left when
you took
the case. It's not easy nor worth it."
Even if you work out a fee splitting arrangement, Centofanti
says you
should still be uneasy about taking on the case. "How long before
the client
leaves you? Will the client cooperate? Is the client going to make
demands that
are unrealistic or unethical?"
3) You lack expertise in the area of
practice. Some cases are simply a bad fit because you lack
particular practice-area experience. Maybe when
that potential client with a real estate dispute came in the door, you
saw it as
an opportunity to help someone in need, while at the same time expand
your
practice and bring in some revenue. Too many lawyers often are tempted
to take a
case outside of their areas of expertise for financial reasons.
Anderson calls lawyers who take cases in practice areas in which
they are
not familiar "dabblers." A high number of malpractice claims
are directly related
to dabbling. According to WILMIC statistics, for example, more
than half the
claims in family law cases involve attorneys who practice in that area
less than
20 percent of the time. Conversely, lawyers who do family law work
almost
exclusively account for less than one percent of family law claims.
Anderson
says, "Don't be afraid to refer a case if you do not have the
required expertise."
4) The client has unrealistic
expectations. In most cases, the honeymoon period, the time when the
case is the best it will ever be, is when the
lawyer and client first meet. You hear only the client's side and what
the client
wants you to know to get you enthusiastically in the client's camp. Only
later,
after you take the case and begin investigating the facts, do you learn
the
downside. Now, the client is primed for success, and that may not be
possible. Worse,
it's your job to pass along the bad news.
"We need to clearly set expectations with our clients. We
are lawyers,
not magicians, and the law isn't a reasonable cure for every wrong or
perceived wrong," Anderson says. Bromley agrees. "I am careful
of clients who believe
that they can bring their problem to me and leave it to be solved."
Part of the problem sometimes starts with the lawyer. "I
think lawyers
often promise too much, or are vague about the timeline" says
Centofanti. "This
can only cause problems down the road. Be honest and upfront with the
client.
Otherwise, the client's high expectations will never be overcome."
Unrealistic expectations can result from poor communication.
Your
client should understand what you can and cannot do, how long it could
take, and
what the cost is likely to be. Lack of good client communication ranks
near the
top of the list of reasons for malpractice claims. Malpractice insurers
like
good engagement letters, detailing the scope of your engagement; what
you're
doing and what you are not doing; an explanation of fees and how
they're to be
paid; and how you can be expected to respond to mail, email, phone
messages, and
faxes. Such details can help alleviate a client's unrealistic
expectations.
5) The client doesn't want to
listen. Someone who "knows everything"
and just wants you to carry out his or her wishes rarely, if ever, makes
a
good client. Pennow says there are some obvious warning signs.
"This is the
client who doesn't listen attentively while I'm talking and often
doesn't allow me
to even finish a sentence and explain things fully. This client wants to
argue
and goes into denial when I start discussing potential weaknesses in the
case."
Bromley says, "These clients attribute all their problems
to others,
without taking responsibility for their part of the problem. If I have
to push
clients to acknowledge their part in the case, I'm better off letting
them find
other counsel."
6) You are already overworked. Overworked lawyers are
more likely to
miss something, whether it's a key fact in a case, a deadline, or
something
else critical to a case. Taking a case when you know you cannot devote
the kind
of attention and time it needs usually leads to trouble. Pennow says
it's
very simple. "Be candid with yourself about your capacity to take
on more work.
There is such a thing as too much work if you are not able to represent
all of
your clients zealously and competently."
7) You don't know enough about the
case. Too often, lawyers take a case before they know all the facts
or have elicited as much information from
the client as possible. Centofanti says jumping in without all the facts
is a
big mistake and can be costly. "Always do the research first and
take the case
second."
Even after you have accepted a case, continue to evaluate it.
Too many
lawyers put on blinders. They become advocates in the first meeting with
a
client and instantly believe in the case without stepping back and
reviewing
the strengths and weaknesses. Sometimes you'll discover you don't have
as good
a case as you first thought.
Pennow has a mandatory three-day cooling-off period between his
initial
meeting with a client and the decision to take on that client.
"This gives me
a chance to reflect, and it also gives the client the same opportunity.
I
use those three days to think about the desirability of representing
this client
and envision how things might go in the long run. I even have an
associate or
a trusted legal assistant sit in on the initial conference and get their
impressions before I take a case."
Conclusion
Lawyers have a strong desire to help people who come to them seeking
assistance and often take on clients against their better judgment.
Sometimes lawyers
take a case because it means more business. Whether it's for financial
reasons
or sympathy for the client, consider the potential risks with each
client who
walks in the door or calls on the telephone. The best way for you to
control
your practice instead of the practice (and clients) controlling you is
to learn
to say no and to pick the cases for which you are best suited.
Wisconsin
Lawyer