State Bar of Wisconsin

Vol. 74, No. 9, September 2001

Stalled Clients May Need a Push

by Ann Massie Nelson

IN POLITE, LEGAL PARLANCE, lawyers handle "issues" or "matters." The truth is, lawyers help solve clients' problems, and problems, by definition, are unpleasant. Legal problems have a particularly high UQ - "unpleasantness quotient."

When clients fail to respond to requests for information, dither at length over decisions, or simply flag partway through representation, you can be sure they are trying to avoid something unpleasant. When deadlines pass and opportunities slip away, you will be the one stuck with a malpractice claim or grievance, not to mention a rapidly rising UQ of your own.

Clients who vacillate, add endless conditions, ignore requests, or seemingly forget why they retained you, may need your help to move forward, according to two experienced trial lawyers, Claude J. Covelli, a partner in the Boardman Law Firm L.L.P, Madison, and Alyson K. Zierdt, a shareholder in Davis & Kuelthau S.C., Oshkosh office.

Uncover the Source of Unpleasantness

Clients delay progress for reasons that even they may not fully comprehend. As their counselor, part of your job is to help clients identify and, if possible, remove the obstacle. The UQ inherent in a client's case rises when:

• Circumstances force the client to reveal private information.
• Your advice conflicts with the client's stated or unstated goals.
• A client faced with a difficult decision dillydallies until few alternatives remain.
• Your client is fully insured and doesn't grasp the need to cooperate with you and the insurance company in his or her own defense.
• Talking with you makes the client's problem "real." A notion that resides solely inside the client's head is just that: a notion. Legal action turns a notion into a reality, and that can be very frightening.
• The client is dissatisfied with your work - or has hired another lawyer - and doesn't know how to tell you.
• Hidden costs are incurred, such as lost productivity due to the distraction of litigation.
• Superstitions creep into the client's thinking. ("I won't die until after I have completed this business succession plan.")
• The client wants to punish the other party with the expense and misery of protracted litigation or settlement talks.
• The client decides the matter is more trouble than it's worth, but feels too sheepish to tell God and everybody (especially you), "Never mind."
• The client is lonely or needs something to fuss about.
• Completing the matter will result in a legal bill the client cannot afford to pay.

Find the Carrot

Identifying and talking about the source of their UQ may be all some clients need. Other clients need your help locating their motivation. Here are some techniques for spurring the hesitant client to act.

• Take a complex process and divide it into simple, manageable steps. For example, instead of asking for a complete financial statement and all receipts, invoices, bank statements, and income tax returns for the past 25 years, ask for one parcel of information at a time.
• Offer the client fewer choices, if possible. Again, a series of choices may be more palatable to the indecisive client. (This is like asking a child, "Which flavor do you want, chocolate or vanilla?" "One scoop or two?")
• Accommodate your clients' needs and abilities when you offer information. Too many facts can leave them in a state of suspended animation. On the other hand, some clients can never act because they will never have enough information.
• Assign the client a deadline that is well in advance of the "real" deadline. A game of Beat the Clock may be the push the client needs. "I rarely tell clients that extensions are possible, because they are not always possible," Zierdt says.
• Remind clients that they will save money, time, and emotional energy by participating fully in their representation. Some clients mistakenly believe that they will save legal fees if they don't ask questions or respond to requests. Dropout defendants think, "If I don't respond, this whole thing will go away."
• Call the client regularly, even during dry spells when there is no action on his or her case. Covelli, who defends lawyers in malpractice actions, says his review of defendants' files often shows a failure to communicate with clients. "In almost every case, there has been no contact with the client for more than six months."
• Downplay the finality of the client's action. Your client may need to hear - depending on the situation - that he or she can revisit the subject in the future. Files can be reopened, documents can be amended, conditions can be withdrawn, and rights can be waived.

This Will Hurt a Little

According to modern entitlement myth, when we spend our money, we get a reward. Legal services, however, often fall in the category of negative rewards. (Your clients probably don't differentiate between a trip to your office and one to the oral surgeon's. Both events result in a high UQ, followed by a large bill with little to show for it.)

Part of your job is to educate clients about what to expect. They need to hear that life is not a courtroom television drama; their matter will not be resolved in an hour. "I try to tell clients who are considering litigation, 'This will disrupt your psyche, your business, your entire life,'" Zierdt says. "Clients get down the road in the discovery process and they just want to turn it off."

Some clients erroneously believe they have transferred all the responsibility to the lawyer. "I tell the client, 'I'm representing you. Your role is to participate and make decisions. If you don't make decisions, I can't do my job,'" Covelli says.

Clients may need to hear the mantra of all recovering procrastinators: "You don't have to enjoy it. You just have to do it."

Last Resort: Protect Yourself

If documented reminders, followed by progressive warnings, do not produce results, you may have no choice but to withdraw from representation. "When clients stonewall, the lawyer can get sucked into a vortex and tarred with the same brush as the client," Zierdt explains.

Review the Rules of Professional Conduct (SCR Chapter 20:1.16) for rules governing withdrawal from representation. Explain your reasons for withdrawal in a certified letter and return the file to the client. Keep a copy of the file and document all communications with the client.

People who cannot accept the legal assistance they need are among the most frustrating for lawyers, who, by nature, want to help and feel responsible. In the end, the lawyer is the person everyone looks to for an explanation.

"You can plead, 'It's the client's fault,' but when your next case comes up on the docket, the judge doesn't remember your client. The judge remembers you," says Covelli.

Now, who has the high UQ?

Wisconsin Lawyer