Vol. 81, No. 3, March
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
There are plenty of choices for the consumer. Practicing law requires
and especially if you are running your own firm, that includes bringing
in the door. Developing or expanding a law practice isn't easy,
solo practitioners competing with larger firms.
Even in large firms, a lawyer often is measured by how much
or she brings into the firm. Given all these pressures to attract new
or new work in a different practice area from existing clients, how
meticulous client selection come into play in determining whether to
Thomas J. Watson, Marquette 2002, is senior vice president and
director of communications at Wisconsin Lawyers Mutual Insurance Co.,
You probably have more than enough files to keep you busy. You may
many or the wrong kind. Facing real people in real crises makes it
always make the right decision about which legal matters to accept. And
turning away business is never easy. Solo practitioners and small firms
they cannot be finicky about the clients or legal matters they
choose to accept.
Lawyers accept cases for different reasons, and sometimes they
regret their decisions. If you're like every other lawyer, you have felt
regret. Sally Anderson, vice president of claims at Wisconsin Lawyers
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
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
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
practice, we will never be able to help anyone. Over the years, that
with time pressures, has helped me to `just say no' to the iffy cases or
Whitewater attorney Mark Bromley agrees. "I'm more
selective now. In
the close call cases that I do take, I confront problem attitudes
and forcefully. If the problem attitude doesn't go away, the client
get excellent client compliance that way."
So what factors should be considered when deciding whether to take on
client or legal matter? Consider seven red flags that lawyers should be
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
attorneys, the seduction of a big payday can lead one to take a case
one's competence, either by virtue of its size or its subject matter, or
Centofanti says, "I think younger lawyers, or inexperienced
those without enough business, clearly take cases they shouldn't take. I
all the time." Centofanti urges lawyers to resist the feeling that
get business of any kind. Instead, she suggests, use some time for
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
school of hard knocks taught him this lesson. "I've failed some of
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
from representing a client who has already had at least one other
it may be an indication that the client will never be satisfied no
is representing him or her, "especially if you recognize the names
previous attorneys and they have good reputations," Pennow says.
Second, Centofanti says there's the matter of splitting fees.
contingent fee setting, the first lawyer who has a signed contingent fee
has the right to the entire fee. You must persuade a court to give you
amount, based on the work you have done and how much work was left when
the case. It's not easy nor worth it."
Even if you work out a fee splitting arrangement, Centofanti
should still be uneasy about taking on the case. "How long before
leaves you? Will the client cooperate? Is the client going to make
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
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
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
20 percent of the time. Conversely, lawyers who do family law work
exclusively account for less than one percent of family law claims.
says, "Don't be afraid to refer a case if you do not have the
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
wants you to know to get you enthusiastically in the client's camp. Only
after you take the case and begin investigating the facts, do you learn
downside. Now, the client is primed for success, and that may not be
it's your job to pass along the bad news.
"We need to clearly set expectations with our clients. We
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
often promise too much, or are vague about the timeline" says
can only cause problems down the road. Be honest and upfront with the
Otherwise, the client's high expectations will never be overcome."
Unrealistic expectations can result from poor communication.
client should understand what you can and cannot do, how long it could
what the cost is likely to be. Lack of good client communication ranks
top of the list of reasons for malpractice claims. Malpractice insurers
good engagement letters, detailing the scope of your engagement; what
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
faxes. Such details can help alleviate a client's unrealistic
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
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
and goes into denial when I start discussing potential weaknesses in the
Bromley says, "These clients attribute all their problems
without taking responsibility for their part of the problem. If I have
clients to acknowledge their part in the case, I'm better off letting
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
else critical to a case. Taking a case when you know you cannot devote
of attention and time it needs usually leads to trouble. Pennow says
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
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
big mistake and can be costly. "Always do the research first and
take the case
Even after you have accepted a case, continue to evaluate it.
lawyers put on blinders. They become advocates in the first meeting with
client and instantly believe in the case without stepping back and
the strengths and weaknesses. Sometimes you'll discover you don't have
a case as you first thought.
Pennow has a mandatory three-day cooling-off period between his
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.
use those three days to think about the desirability of representing
and envision how things might go in the long run. I even have an
a trusted legal assistant sit in on the initial conference and get their
impressions before I take a case."
Lawyers have a strong desire to help people who come to them seeking
assistance and often take on clients against their better judgment.
take a case because it means more business. Whether it's for financial
or sympathy for the client, consider the potential risks with each
walks in the door or calls on the telephone. The best way for you to
your practice instead of the practice (and clients) controlling you is
to say no and to pick the cases for which you are best suited.