Allocatur

Hollywood Expectations

Do your clients have Hollywood expectations?  By that I mean, they expect things to happen the way things do in the movies. 

 In the movies the following happen:

• Their lawyer only works on one matter at a time (the client's)
• The lawyer is able to find the case/witness/piece of evidence that magically results in a win for the client
• There is never a discussion about how much it is going to cost the client
• Cases are conducted with the speed of light, with major litigation getting a hearing within weeks of the proceedings being issued
• The other side is always in the wrong
• There is only black or white - nothing is ever grey

It should be pretty obvious that if your client has Hollywood expectations, then you are in trouble unless you can remove the rose coloured glasses and have the client see the real world of a legal case. 

Direct Briefing of Barristers

I recently presented at a conference of In-House Counsel and in one session the question came up about whether in-house counsel would be personally liable for barrister's fees, if they direct briefed.  But what do we mean by "direct briefing" anyway?  Simply, it means that in-house counsel send a brief to a barrister directly, and not involve a solicitor as a middle-man.

The concern was, that unless barrister's cost agreement was with the in-house counsel, and thereby making him or her personally responsible for payment of the barrister's fees, the Bar Ethics Rules preventing direct briefing by a client would be breached.

I am a great proponent of direct briefing as a way of controlling costs.  I will post separately on the dos and don'ts of direct briefing but suffice to say, in-house counsel will not be potentially liable for payment of barrister's fees, nor is there is a breach of either the Legal Profession Act or the Bar ethic rules when there is a direct brief, if done properly.

This is easiest to understand if you keep in mind there are two different aspects to engaging the barrister -  firstly, who is briefing the barrister and secondly, who is agreeing to be responsible for his/her fees.

In-house counsel would brief the barrister, so the direct briefing rule is not breached as the barrister is not accepting a brief or instructions directly from a client (the definition of direct access in the Bar Rules).

However, the company itself (the client) would agree to be responsible for the barrister's fees and therefore the cost agreement would be between the barrister and the client. This arrangement is envisaged by s 3.4.26 of the Legal Profession Act (Victoria) (and equivalent provisions in other state Acts)

s. 3.4.26

(1) A costs agreement may be made:

(b) between a client and a law practice retained on behalf of the client by another law practice;

In this instance, the barrister only has to give the disclosure normally required to be given to a solicitor retaining them on behalf of a client (i.e. details of how the barrister is charging, when he/she is going to bill, and an estimate of fees to be incurred).

To clarify a couple of points:

• Unless the barrister is charging in accordance with scale, a cost agreement is always required.

• Disclosure is not required where the client is a sophisticated client (as defined by the Act), (most commonly publicly listed companies and the Government).

• Only conditional cost agreements need to be signed - for all other agreements it is possible to specify what conduct will constitute acceptance (most commonly continued instructions).

Do your lawyers ask FAQs?

An in-house counsel recently said to me that whilst his client relationship partner had that deep corporate memory, most of the younger lawyers working on his matters did not, and he was a little tired of answering the sorts of questions he felt the law firm should already know.

I was interviewed for this week's cover story in Lawyer's Weekly- "TechMate - How technology can position in-house lawyers to negotiate better with law firms".  An interesting suggestion of one of the other interviewees, Peter Moon, a partner at Logie-Smith Lanyon, was use of a wiki for a particular client, to provide FAQs - answers to those frequently asked client questions.

A wiki could be put to exactly the same use by a client involved in commoditised work.  For example, it could set out your general expectations regarding communications, your preferred format for advice, your billing and engagement guidelines, your general directions regarding accepting service of proceedings, information regarding the correct title of various persons in the organisation for reference in court documents - the list is endless. 

To power dress or not to power dress

Two reports with contrasting views about power dressing for lawyers.  The American Bar Association Journal reports that the downturn in the economy is causing lawyers to turn away from casual dressing and back to "Gordon Gecko" power dressing, presumably as a way of reinforcing credibility?  The comment from one lawyer in the story is "I think people expect high-powered lawyers to look like high-powered lawyers".

In contrast, Patrick Lamb tells a delightful story about a lawyer attending on his client at their waste station premises, and how incongruous his power dressing (and attitude) were.

For years, I have heard comments from in-house counsel and other legal clients about the marble foyers and offices of their large legal firms.  The vast majority were throw away comments along the lines of "so this is where my legal fees are going".  Perception is important.  It's like the American and British banks who, having received huge hand outs, are now paying bonuses which are beyond the comprehension of the average man in the street.

It seems to me that in the present economic client, power dressing is not the way to go.  I understand that maybe it is time to pull back a little from the casual jeans and tee shirt (or green bermuda shorts!), but if my lawyer was wearing new clothes that put him straight onto the "Wall Street" set and echoing Gordon Gecko, I would query if my legal fees were being well spent.

A second honeymoon for the lawyer and client?

It's like a marriage - it takes work to keep it fresh. Yes - the relationship between lawyers and their oldest clients sometimes needs that second honeymoon. Matt Homan has an interesting post on how sometimes lawyers' oldest clients can take them for granted, purely because the lawyers fail to point out that the service the lawyers delivering is far better than what the client would get elsewhere.

But on the other hand, its terribly easy for lawyers to also take their oldest clients for granted. You know the story - the new client comes in, they're different, take work to get to know, you want to impress with your service. But don't let that lead to you neglecting your old clients.

To extend the analogy, working with corporate clients, I've acted as the marriage guidance counselor, and used the establishment of benchmarks and revision of engagement guidelines to kick start the second honeymoon. The discussions resulted in both client and lawyer seeing each other in a new light and having a substantially better understanding of each other. The sign of a good marriage!

Email - Does it have You Under its Thumb?

Email and its immediacy has created a whole new world for lawyers - and a big dilemma.  Much of the work we do requires intense concentration and periods of time without interruption.  Too many lawyers I know (self included) solve this problem by working early in the morning or late into the evening. 

How many of us have days where we really feel productive?
We are more likely to end the day feeling that we have taken two steps forward and three steps backward. A New Scientist article reports findings on interruptions - that on average a worker is interrupted every 3 minutes, and it then takes 2 different tasks and 23 minutes to return to the original task.  It's possible to close the door and divert or turn off your phone, but how do you control emails.

10 tips for controlling Emails

1. When you are initially retained, discuss the client's expectations regarding email.  Explain that there are times when you are not able to respond immediately to emails - including when you are in conference with other clients, in court, or spending dedicated time to undertake work requiring concentration, such as drafting.  I explain to clients that having dedicated time to concentrate, results in my producing quality work more efficiently (and therefore cost effectively) and therefore is beneficial to them.  If something is urgent and needs immediate attention, I ask that the client telephone and explain the urgency, in which case they will receive immediate attention.
2. Turn off the email notification
   - whether it be a "beep", pop-up, or notification in your scrollbar.
3. Turn on your "out of office" notification if your email system has this feature.
4. Use rules to sort email into folders
5. Make clear to your other team members when CC is to be used. 
   If they would not normally give you a hard copy of the letter, why do you want a copy of the email?  Emails are a great way of micromanaging, but is this your preferred managment style?
6. Use shorthand in your address line - and encourage others to do the same
   for example - fyi (for your information), nrn (no response required), sro (short response only).
7. Get one major task out the way at the start of the day before you check you email  (courtesy of Julie Morgernstern via Lifehacker
8. Educate your direct reports and other team members to think before they write, and to edit emails.  Too often emails are a "stream of thought" - if you wouldn't put it in a letter, don't put it in an email.
9. Sometimes it is actually better to pick up the phone.  It may be more efficient to actually speak - rather than do the electronic chit chat.
10. You could adopt my husband's approach.  On returning from holidays to some hundreds of emails, he deleted them all without reading them, on the basis that if anything was really important,  the sender was likely to follow up in some way.  Of hundreds deleted, only 20 came back!

It's a Ship not a Boat.

When I was a very young lawyer working for an exporter who had a number of claims against a shipping company which had not completed delivery of goods, I was brought up short when I referred to one of the shipments being moved off the "boat". My client was very quick to tell me a boat was a very small vessel and all his goods were sent by ships. The tone of voice made it very clear I needed to learn about my client's business and using the correct terminology was part of that.

I was reminded of this when I read Tom Collin's post at MorePartnerIncome on what it actually means for an outside lawyer to understand their client's business. As Tom succintly puts it:

It is not about how competent you are. You are supposed to be competent. It is about your “bedside manner”. You are in the service business. You happen to be in the lawyering service business.
If you want to retain and grow your relationship, you have to invest in understanding the Client’s purpose, its goals, its culture, the issues it faces, and even its “words”.

Respondents to the Harris Cost Lawyer/Mahlab Recruitment survey of in-house counsel indicated that top ranking criteria in choosing an external law firm was understanding business objectives and planning strategies accordingly.

It is the vary exceptional lawyer who can rely on their competence only. And even then, competence only goes so far. It must be applied with the client's particular business interests and issues in mind to be most beneficial.

So take the time to learn your client's business.

Tonsillitis and Legalese

My 8 year old daughter had her tonsils out last week. In the recovery room afterwards, the very helpful anaesthetist began explaining pain control. He told me how much paracetemol per kg was appropriate but the dosage and frequency depended on the no of mgs of paracetmol per ml in the particular product I would be using. Standing with my daughter, waiting for her to come round, with no pen or paper, I took very little in. But rather than telling the doctor that I was unlikely to remember what he was telling me, I kept quite, and found myself phoning the surgeon the following day asking her to simply tell me how many mls of medicine I should be giving and how often.

My brother-in-law pediatrician once told me that when he has to break bad news to parents, he puts it in writing to give to them to read again after their initial meeting. He also arranges an further time for them to come back to him to discuss all the questions they will undoubtedly have after the news sinks in. Doctors are taught that, when the news is bad, a patient will only take in about 20% of what they are told .

It made me think, we are in a similar position as lawyers. It is too easy to speak in "legalese" that we take for granted and expect everyone to understand. In being risk adverse, we can try to cover off all possible options and simply end up overwhelming the client.

We need to be careful that the lack of questions on the part of the client is not the result of them :

• Being totaling overwhelmed by the information given
• Not knowing where to start
• Not wanting to appear ignorant

Be like the doctor - break the information up into small chunks, use simple language, put it in writing, and, in appropriate circumstances, arrange a follow up meeting.

Are you defaming your client?

It's amazing how often file notes demonstrate the "them and us" attitude adopted by some lawyers to their clients. It's even more amazing that those lawyers forget that these notes will be discoverable if they ever are in a dispute with the client regarding costs or conduct. I have seen quite defamatory file notes including descriptions of clients ranging from "evil" to "an absolute nutter" and other descriptions that can't be published in a family friendly blog!

Emails are a particular problem. There is still a prevailing mentality that they are not "formal" documents. Internal emails are the worst - there is a overwhelming belief they are "private" and unless they are released by mistake - that unfortunate hitting of the reply to all button or the like - they will never be seen other than the sender and recipient. Again, such emails are discoverable in a myriad of circumstances, and most commonly in client disputes.

We should be working with our clients - not against them.
If you can't stand the client, you shouldn't be working for them. Life is too short.

Be Brave - Turn Away a Client

It is one of the Laws of Cost Disputes that any client coming to you from another firm should be treated with care. The greater the number of previous law firms, the greater your wariness should be.

Find out why the client is changing firms. Is it due a lack of performance on the part of the previous firm - and is that lack of performance genuine or due to unrealistic client expectations?
Is the client moving because they didn't like the advice the previous firm was giving?
Was cost the issue - and if so, are you capable of delivering to meet the client's expectations?

If the client is moving for genuine reasons and you can meet their expectations, you still need to realize the client may be coming with a history of unhappy experience of lawyers. This gives you a great opportunity to prove you can do better than your predecessors, and if you achieve the difficult task of changing the client's attitude to lawyers, you will have won a loyal new client.

However, there are times when you should turn the potential client away

• if client expectations are unrealistic and can't be met
• if you for whatever reason, cannot meet the client's expectations, maybe because you don't have sufficient expertise in the field, or don't have the time to properly devote to the matter
• if the client has had such a bad history with previous lawyers that they are unlikely to ever be satisfied, no matter what the result
• if, when you discuss costs with the client, they indicate concern about the ability to pay at the level you are discussing.

So - be brave. Think about whether the client merits the time and effort.