practice pointer

Practice Pointer: Managing Client Expectations

June 9, 2015 Leave a Comment

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.

Practice Pointer: Communicating with Clients

June 9, 2015 Leave a Comment

By: Nicole DeBorde

A client who feels they have access to you is generally a happier client. Even if you are working feverishly on your client’s case, he has no way to appreciate your hard work if you are not communicating your efforts and work to him.

That said, separately updating mothers, sisters, girlfriends, aunts and cousins can lead to significant misunderstandings. The best practice is to get written permission to communicate about a client’s case from the client. This permission should be specific as to the person with whom communication is allowed. Even if a client gives a lengthy list of people who can discuss the case with me, I limit my conversations to a person designated by the family as a spokesperson for the family.

I always invite the client to call or make an appointment to come in whenever they feel it is helpful or necessary to discuss the case. When the accused is in jail, accepting collect calls is usually helpful. I always stress to the client that the calls are recorded, but often times the calls are questions about court dates or other basic procedural matters. If a client has a more specific question, comment or concern that needs to be discussed in person at the jail and we arrange a jail visit. For federal clients in custody, I invite them to set up a Corrlinks account so that we can correspond by email on non-sensitive matters. Clients are typically very grateful for a lawyer’s accessibility, and sometimes just knowing the lawyer is available to answer questions cuts down on anxiety. I make it a point to call clients back the same day or the next day at the latest whenever possible. This includes while I am in trial even if it means returning the calls by cell phone in the evening. Clients who are not called back promptly will take it personally and feel mistreated. Promptly returning calls is great for future business as well as keeping the clients you have happy. Far too many State Bar disciplinary cases are the result of failure to communicate with a client. This is a very easy problem to avoid.

Sometimes, I run into a client who is insistent on doing the opposite of what I am advising or who asks the same questions repeatedly as if the questions have not ever been addressed. In these circumstances, I will write down the information in a letter and even sometimes have the client initial my copy of the letter. This is NOT something I file in court. It is a document for my file and for the client to have something they can refer to if they are having trouble remembering what was discussed. Sometimes having the information to read helps significantly when a client has had difficulty either believing or understanding information.

Many client-lawyer disagreements can be avoided with simple communication. Taking the time to make sure the client’s questions are answered is always worth it – for the lawyer’s peace of mind and the client’s.

Practice Pointer: Firing a Client

June 9, 2015 Leave a Comment

by Pat McCann

If there is one group who should know about bad relationships, it is criminal defense lawyers. We could write books on surviving them, with chapters by local experts [you all know who you are!] but here is one topic that may not get discussed enough – getting rid of bad clients. We all have ones we want to dispense with, appointed or hired, and we all often, in a similar view to our perverse pride in surviving bad relationships, continue to represent them as badges of honor. However, my uncle, who is semi-retired now, had a great point once over dinner; he asked me “If ten to twenty percent of your clients are taking up fifty percent of your time, aren’t you hurting your other clients by keeping them?” That was my wake up.

Here are three simple questions to ask in determining whether you should fire a client. Do you cringe when you hear they are on the phone or see their name come up on your smarty-pants phone? Do you deliberately avoid setting appointments with them? Do you consistently lose your temper with them, or consistently struggle? If the answer to these is “yes”, fire them. Here is how:

Withdrawing from a case requires notice to the client [should be in writing sent certified mail, return receipt requested, NOT email] with a full statement of all settings remaining, availability of the file for pickup or the file itself returned, and a letter explaining, short and sweet, that either they have failed to follow advice or pay you, or that communications have broken down so badly that the attorney client relationship is irreparably compromised. You will also need to file notice with the courts, and if you are appointed, a motion requesting withdrawal [which can sometimes be handled informally by approaching the judge and explaining, without revealing confidences, that this just ain’t working] and ask for another lawyer to be appointed. Do it, and when you feel that sense of relief, you will know you did the right thing.

Practice Pointer: Do You Allow Mom to Attend Client Meetings?

June 9, 2015 Leave a Comment

By: Nicole DeBorde and JoAnne Musick

Of course, the answer is it depends. It can definitely be helpful for family members to hear about general matters like courtroom procedure, how long various steps will take, what you expect to happen and when and what you need generally from your client. Often, the client will be seeking the opinion of these family members, so it is better to have them accurately informed.

On the other hand, it is clearly a problem to have family members in a meeting where the client will be discussing his actions or involvement in a case when that information could later be revisited in court in the form of testimony from those same family members under cross.

Often times, I choose a middle ground. I include family members (with the permission of the client, of course) in that portion of the meeting which will allow them to hear the general information about the case and expectations. I also invite them to ask any questions, and I answer the questions I can without violating a confidence or sharing information about the facts of the case. Sometimes the family members already know the details of the case either because they are witnesses or the client has told them details prior to my engagement in the case. In these instances, I sometimes allow the client’s family to remain for some fact discussion. Usually though, after general discussion has been had and general questions have been answered, I excuse the family members to the lobby and continue the meeting with the client in private to discuss the details of the case. Remind the family during the general information session that attorney-client privilege protects the client and will be destroyed if they are present while you discuss facts and circumstances surrounding your representation. Explain that the privilege exists to protect the client as well as the family (i.e. family could be subpoenaed and forced to testify against the client should the client discuss details with them). In my experience, most family members understand this concept and would not want to be forced to testify against the loved one.

Also, it is important to make sure it is the client’s will being done throughout the representation and not the will of an overbearing family member. I make sure to ask the client privately about matters requiring a choice during the representation.

Overall, including family members in meetings with the client can cut down on misunderstandings and help the family appreciate the hard work you are doing for their loved one. But, keep in mind; there are some things that must be discussed with the client in private even when the family wants to participate in order to preserve the privilege and confidentiality of your representation. In simple terms, make sure the client’s interests always come first. Remember the family wants the best for the client, that’s why they have come to see you, but they do not automatically understand that too much involvement can be detrimental so politely explain this to them and move on.

Practice Pointer: Managing Client Expectations

Practice Pointer: Communicating with Clients

Practice Pointer: Firing a Client

Practice Pointer: Do You Allow Mom to Attend Client Meetings?

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