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Vol. 74, No. 9, September 2001
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Stalled Clients May Need a Push
Why do clients delay? For the same reason all of us procrastinate: We want
to reduce our "unpleasantness quotient." Lawyers must help clients move
forward, because when deadlines pass and opportunities slip away, lawyers
are the ones stuck with malpractice claims or grievances.
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Ann
Massie Nelson is a regular contributor to Wisconsin Lawyer and
communications director at Wisconsin Lawyers Mutual Insurance Co.
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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?
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