Last year we got an exciting new client -- a real estate brokerage company. The principal approached me at a conference with a query about a unique commission dispute involving issues of eminent domain. I asked him to send me the brokerage agreement, the lease, etc. We did a bunch of research, we asked the principal many questions; we actually had to pull some other court files regarding a related matter. See our Information Gathering chapters to get an idea of how we do things. It took about a week.
We wrote the prospective client a Legal Project Management Letter, for which we did not charge in this case. The client spent what seemed like a long time thinking about it, and finally came back with questions. We answered the questions. The client hired us. We did not obtain the best results imaginable, but we did not promise to. The client knew the risks, took a chance, and recovered something that made the legal fee worthwhile.
The client had lunch with me and some other attorneys in the firm thereafter. I asked him, why did you hire us? He asked, "Do you want the truth?" (No, lie to me.) He said:
"I consulted about a dozen lawyers on this. You were the only one who did not tell me that you could win my case. You were the only one who did not say, 'Yeah sure, of course, you can win.' Instead you sent me a long, thoughtful analysis, and you concluded, 'maybe'. You were the only one that thought about it."
That was a profound moment for me -- "You were the only one who did not tell me that you could win my case." That's why we got hired. And, frankly, that's why it went well. The client understood that the decision was his, and his expectations were managed such that he didn't have high hopes of recovering every penny that we sued for. He understood there were hurdles. He understood the risks. We went in with our eyes open and with shared goals.
Clients are not paying for lawyers to tell them what they want to hear. Somewhere along the line, the legal profession (especially in the commercial litigation context) became glutted with "yes-people". I call them "Yes-Lawyers". Yes-Lawyers are lawyers who agree with everything that a client or prospective client says and wants to do. "Yes, Sir, certainly we will win that motion!" The Urban Dictionary defines a "Yes Man" as someone who always agrees with authority and does what he's told, even if it is stupid or illegal.
I asked a lawyer outside my firm why our profession increasingly operates in this sycophantic way, and he responded, "Because there are 77,000 lawyers in the New York City metro area, and if you do not tell the prospective client what they want to hear (especially the rich and powerful ones who are used to hearing just that), then they will hire someone who will."
I reject that. Clients are not stupid. I have had prospective clients grill me on my less than enthusiastic takes on their situations, but that seldom sends them running. I have this one guy who has called me three times recently. Each time he calls me he says, "We'll, another lawyer told me that for sure I could do X successfully.” So hire him! Why are you still talking to me?” But he and I both know why.
Clients should be paying lawyers for meaningful analysis and for paths toward solutions. When you take a thorough and searching look at something, especially the law and the facts at the forefront of a sophisticated commercial litigation, you usually need to admit that there are no "slam dunks". Oh how I hate that phrase! It takes patience and commitment to practice the Legal Project Management way. But wouldn't you (and I am speaking to both the lawyer and the client here) rather have the courage of convictions born of a structured process of real thought and attention to the matter at hand, as opposed to just ...bluster.
Labels: Ch. 19 - Critical Thought