Oct. 17, 2017 - A good friend of mine described his first jury trial – an OWI second offense of 30 years ago – as a "nightmare."
But it didn’t begin that way. He had convinced the court to exclude the blood alcohol test results. There was minimal poor driving. The client had performed well in most of the field tests, and his testimony had been smooth.
The jury returned with a verdict following a very short deliberation. The new lawyer turned to his client and whispered: “We got this.” He and his now confident client stood, and both listened in horror as the clerk curtly announced two guilty verdicts. When my friend sheepishly turned to face his client, no words were necessary. The shell-shocked glare of an over-promised client said it all.
Later, as the judge was thanking the jury for their service, a juror wondered aloud why the lawyers did not tell them that the defendant “blew a 0.15.” Apparently, this information had been mistakenly provided to the jury in an unrelated document. A second trial resulted in a hung jury, and the case was dismissed. Still, my friend describes this as one of the more cringe-worthy moments of his career. Above all, he refers to it as a hard lesson well learned.
Avoiding the Cringe-worthy Moment
Managing a client's expectations may be one of the most important tasks litigation attorneys have. Most of us deal with client expectations on a regular basis, and many of us have the battle scars to prove it.
While we all possess a lawyer’s intuition that nothing good can ever come from ignoring unrealistic client expectations, sometimes we just don’t see it. When that happens, and the client's heightened expectations collide with a contrary and harsh reality, the attorney/client relationship can be tested.
One thing is certain: The failure to manage a client’s expectations is always the fault of the lawyer.
The First Meeting Sets the Tone
My experience is that much of this task can be accomplished at the initial client conference. However, managing a client's expectations does not stop there. It must continue throughout the matter and up to conclusion.
Here are some suggestions:
Ask, Listen Carefully, Repeat Back, Memorialize
Early on in the initial conference, ask the client what they expect you to accomplish for them, and listen carefully to what they say. Then repeat their expectations back to them, using their words.
This provides two benefits: First, it eliminates any ambiguity between lawyer and client. Second, the client does not hear "lawyer speak" but, instead, the language they use every day. This creates a common connection, giving rise to both trust and confidence.
Finally, incorporate these words into your engagement letter to memorialize the agreement.
Emphasize that You Can Only Guarantee Your Best Efforts
Emphasize that you cannot guarantee a result, but can only guarantee your best efforts. Then emphasize it again.
Discuss best-case and worst-case outcomes. Some lawyers may take issue with this suggestion at such an early time. However, if the client wants a lawyer who will tell them only what they want to hear, I’m not interested. I think it's better to have this conversation up front, rather than two years down the road at 5:10 p.m. in a mediation that began at 1 p.m.
Walk Them through Procedures
If the case will likely be litigated, ask the client early on if they are familiar with the basics of litigation. If not, walk them through it, particularly focusing on the protracted time frame. Litigators are numb to it, but the length of time required in litigation drives most clients and their families crazy.
Don’t Estimate Value Until You Have All the Information
Clients will often want a “ballpark” estimation of the value of their contingent fee case. Don’t do it. If the injury was recent, there is no way to properly value it. If the injury is more dated, it is unlikely the client will be able to provide you with nearly enough information for you to properly value it.
Instead, emphasize that no evaluation can be made until you have all of the information about the entire case, which is usually not until a demand is prepared.
Tell Them about the Weaknesses of their Case
Throughout the case, be vigilant in managing expectations. The client is invested in the outcome and often cannot see, or does not want to hear, the weaknesses of their case or the merits of the other side. This discussion must be had, however, particularly when preparing for and participating in mediation (or another alternative dispute resolution proceeding), and when deciding not to settle and go to trial. Memorialize these discussions with your client.
Never Say ‘We Got This’
If a trial is required, avoid telling your client "We got this." Instead, again explain that you will put forward your best effort and present the best case you can for your client, but that you cannot guarantee what 12 strangers will do with the facts.
One Final Tip
Danny DeVito’s character in The Rainmaker, paralawyer Deck Shiffler, uttered a very prescient line: “What they don’t teach you in law school can get you hurt.” When it comes to managing client expectations, Shiffler had a point: Do it early, and do it often.
And no matter what, don’t ever whisper anything to a client when a verdict is about to be read other than “Stand up straight.”
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.