By: JoAnne Musick
What does your client expect? Knowing what she expects can help you meet those expectations. Knowing what she expects can help you redirect those expectations when they are unrealistic. Communication is key in this regard.
When you first meet a potential client, it is important that you ask her what she expects. Does she expect to walk? Does she expect to go to trial? Does she expect to plea-bargain her case? Granted, you will not be in a position at this point to properly advise your client as to the realities of those expectations. At an initial meeting, you are not in position to promise, guarantee, or suggest a possible resolution. You may have heard your client’s side of the story, but most often, there is at least one other side to that story. There would be no way to know at this point whether you can successfully negotiate a dismissal. There would be no way of knowing whether your client might prevail at trial. Making a promise as to a dismissal or particular plea-bargain or even a win at trial only sets up unrealistic expectations from the beginning. Some lawyers make these promises to encourage the client to hire them. This is wrong; don’t do it. Instead, explain why you cannot say what will happen because you have not seen the evidence.
When you ask your client what she expects, be prepared to explain why those expectations are likely or unlikely to be realistic. I have clients tell me they expect to plea-bargain their case. That’s fine. I explain that a plea-bargain is certainly a possibility; however, first the case must be investigated and analyzed to see if a dismissal might be warranted or if a reduction is possible. I have clients tell me they expect to try their cases. That’s fine. I explain we are a firm of trial lawyers, and we start out preparing every case as if it will be tried to a jury. But I also ask the client to keep in mind that we have no way of knowing at this point if a particular plea-bargain offer is good or which jurors will show up for jury duty and how they might feel about the evidence because we haven’t even reviewed the government’s evidence or developed our evidence and strategy. So I ask the client to let me help them understand the evidence that the government will try to present so that we can make the best-educated decisions about trial. I also remind the client that while we might believe we have the best air-tight defense, ultimately, a jury makes that decision so we cannot promise or guarantee any particular result.
This key communication sets the tone early for understanding your client’s expectations and managing those. I also begin my representation with a letter to the client (after the contract is signed or after the court appointment is made) that details how to reach me, why I may not be able to take or respond to phone calls immediately, how the case is expected to proceed, and what is expected of the client. This tends to help clients understand the process and what to expect. It also lets them know what I expect from them.
As the case progresses, strive to keep those preliminary expectations under control. You should communicate early and often with your client. This could be via telephone, email, or meetings. But, where any of these conversations come down to the client needing to make a decision (whether to accept a plea-bargain that has been made, whether to proceed to trial, or other similar matters), I prefer to follow-up that meeting with a letter detailing our conversation. It could be as simple as: you have been offered a plea-bargain of X, and the range of punishment for your charged offense is Y; we have discussed the pros and cons of accepting this plea-bargain; and you have indicated you would like to accept/reject/counter that offer. This is simply a letter from you to your client so they see the offer and can think about the consequences of their decision. Obviously, this type of letter will not always be necessary, but where decisions are complicated (like multiple alternative plea-bargain options: conviction with time served or probation), or where the client wants to “think about” the advice you have given, this gives the client a framework of reference while they contemplate their decision or discuss it with family. It also helps prevent a misunderstanding as to what you have told your client during your telephone call or meeting.
