The Client Quotient
The top 10 rules of
By Michael P. Maslanka
I practice employment law. There are, of course, several other specialties, as well as numerous generalists. But whatever our practice area, we all share one constant: the need to effectively communicate with our clients.
The ability to do so — what I like to call a lawyer’s 'bedside manner' — is not something taught in law school, and is often hard to pick up in the day-to-day bustle of practice. As with many things, it is easier to describe the problem than to provide a solution.
So, I have put together the following rules to help lawyers, not so much with their 'IQ' as with their 'EQ,' their emotional quotient — which is nothing more than an ability to understand a clients’ problems, empathize with them, provide options, give bad news and still retain their trust and respect. The math is simple: Lawyers with a developed sense of 'EQ' are less likely to have disgruntled clients, less prone to grievances and feel more satisfied with the practice of law.
Rule 1: Lawyers Are Advisers, Not Consultants
A lawyer is an adviser, not a consultant. Some wag once defined a consultant as 'someone who knows 10,000 pick-up lines but has never had a date.' That’s true. Technical expertise is simply not enough to be a good adviser; unlike a consultant, a lawyer must bridge the world of theory and apply it in developing concrete solutions for a client. This is a 'home base' rule: When in doubt, rely upon it in all client communications.
Rule 2: 'The difference between the right word and the almost right word is the difference between a lightning bolt and a lightning bug.'
This quote from Mark Twain says it all. A slight shift in emphasis in communicating a difficult issue to a client can make all the difference between the client accepting or rejecting the counsel being given. Clients are willing to accept bad news if it is presented in a way that is palpable, understandable and confirms the lawyer is a friend and not an enemy. This arises in a variety of problem situations which are diagramed in the chart on page 10.
Remember: How you say something is just as important as what you say.
Rule 3: When Asked a Question, Answer It
A number of years ago, a client called and asked me whether we would win a case, and if we lost, the range of damages. I pontificated with the utmost erudition on the vagaries of jury trials, the elements of damages and the like. In other words, I didn’t have a clue. After about 15 minutes of silence on the other end of the phone, the client simply said: 'You haven’t answered my question.' He then said: 'Maybe you don’t know the answer, but of the five billion people on earth, you come closest to knowing.' Then came a gentle reminder that he was paying me for my expertise and did not think that an answer to the question was unreasonable. While my feathers were ruffled, I still learned the lesson.
I think these conversations are not uncommon. I was just lucky to have a candid client. I ran into another employment attorney a few years ago at a conference. We shared the same client, but in different parts of the country. He said that our mutual boss, the assistant general counsel, asked what he thought it would take to settle a case, and what he considered the down-side exposure to be. He told me that he thought this was something of an unreasonable request, and told her that he really didn’t know. Wrong answer.
Frankly, what lawyers would not put up with in their car mechanics, we expect clients to put up with in us. When we take our car to the shop in the morning, we don’t expect to go back at night to have the mechanic tell us 'on the one hand, it could be the carburetor, but on the other, it could be the transmission, and yet on the other…' much less telling us it can’t be fixed.
Although we need not engage in engineer-like precision, we can still ballpark it. We can do this in a number of ways: telling a client that if we try the case 10 times, we will win or lose it 'x' number of times, or that we believe a potential jury verdict will be in a certain range a certain percentage of the time, or that we believe the plaintiff will settle within an approximate range. We owe our clients the value of our expertise and our experience.
Rule 4: For Goodness’ Sake, Shut Up!
Not the client, you. Lawyers often interrupt their clients, talking over them, and ending what could be a fruitful dialogue. We do this for one of two reasons:
- Some of us tend to be arrogant and pompous and want to impress the client with how much we know. Clients, however, often perceive this rush to talk as a reflection of inexperience and a lawyer being too anxious to prove his or her value. They also perceive it as not wanting to take the time to understand their problem. Remember: if you talk too soon, then you won’t get all the pertinent facts and your solution may not fix the problem.
- We interrupt out of a more benign motive and simply try to reflect back to the client that we agree with what the client is telling us. That’s fine, but you need to let the client finish conveying a thought before popping up like a jack-in-the-box to recite some war story as to why the client is right. Remember: It’s about them, not you.
Here’s a rule of thumb. We like to tell clients when they conduct an investigation into inappropriate behavior in the workplace that — rather than arguing with the complaining party that something didn’t happen, or that a supervisor is too good a person to commit sexual harassment — they take a 'mental time-out,' refrain from talking and listen to the person. The same idea applies here. So, the next time you are with a client, and you want to start to talk, throw the flag and declare a 'mental time-out.' It works.
Rule 5: Know Your Client
Psychologists tell us that there are a number of different personality types. A leading test in this area is the Birkman, which divides personality types into four groups. There are other tests. The point of all this research is not to find out what your personality type is, but the client’s. Once you know that, you can then tailor your responses.
Let me give you an example. I was meeting for the first time with the president of a corporation of about 150 employees. An employee he had terminated retained a lawyer who sent a demand letter. It went on for several pages and essentially said that the ex-employee was a whistle-blower, which he asserted was the reason for the firing, and that the president had better pay up. Throughout our discussion, the president was very agitated at the letter.
He then pulled out his response, flung it across the desk and asked, 'What do you think of this?' I glanced at his letter, looked up at him and said, 'I’m glad it’s more than two words.' We connected. The same line or the same approach with a different personality type would not have worked. What are the different types of personalities? See the summary in the chart on page 12.
All of this is simply figuring out someone’s needs and then devising a plan to meet them.
Want to learn more? Several companies let you take the Birkman test or others at a modest price, together with some training. Also check out The Color Code by Taylor Hartman, which has practical, easy-to-implement advice on how to identify and deal with different personality types, or Selling the Invisible by Harry Beckwith, which provides thoughtful counsel, in a reader-friendly format, on meeting and exceeding client needs.
Rule 6: Optimism Goes a Long Way
In his astute book, The Art of Advice, Jeswald W. Salacuse, former dean of the Southern Methodist University School of Law, makes a telling point: An adviser whose advice is consistently negative is not as good as one who can explain the positive opportunities in a situation. A client will very quickly pick up on this; the person who can see all of the negatives may be more educated, but the person who can see all the possibilities is more experienced. Here’s what Salacuse says:
A pessimistic advisor is not generally the best advisor. Indeed, consistently negative advice is often an indication of inexperience. While formal education may have taught advisors what won’t work, it’s experience that teaches them what will…
Being optimistic is not being a Pollyanna; it is not adopting an ostrich-like attitude of self-delusion; and it is not a willful refusal to see the obvious. The essence of optimism is developing and presenting options which will solve the client’s problem.
Any lawyer can essentially 'C.Y.A.' by telling a client to avoid exposure and therefore not to do something. Clients do not need to pay for this — if the answer is black and white, then the client doesn’t need us. Rather, it is up to the lawyer to develop options among the shades of gray. How do we go about doing this? Here’s a simple formula: Every time you say 'this won’t work,' follow it up with a '(comma) but this will,' or better yet, keep this demarcation seamless, with your counsel on options twisted together like a pretzel with your admonitions.
A couple of caveats. First, this rule is not to be confused with telling the client what she or he wants to hear. You can be both optimistic and honest. I recently spoke to a client about a tricky and undeveloped area of removal law. When he asked about our chances of success, I told him that 'we have good arguments but the operative word is argument.' Message delivered.
Second, keep in mind that when we represent individual defendants in litigation — which is becoming ever more frequent — it is especially important to have just the right mix of optimism and frankness. A piece of litigation can hang like a cloud over the individual defendant’s life, permeating everything, not unlike the smell of a smoke-filled room clinging to our clothes. It’s not a pleasant experience. Consequently, we need to have our antennae up and assist a client in placing the lawsuit in proper perspective. Here is an example.
I was representing a prominent physician. He was being sued for sexual harassment. The allegations were egregious, and I believe entirely untrue. The fact that he was in the right provided little comfort to him and his spouse. The first time that I met with them, his wife asked me how bad things looked. Before adhering to rule number two — I did, in fact, answer the question — I emphatically told her the following: ' This lawsuit will be resolved one way or another. And after this lawsuit is over, you will still have everything that is important to you: your family, your home, and your life. It would be a terrible mistake to let the plaintiff, however the lawsuit turns out, ‘win’ by making you focus myopically on this suit. We will work through this together. Whatever you do, don’t let the tail wag the dog.'
Rule 7: Every Problem is an Opportunity
The Chinese character for danger is also the character for opportunity. We as lawyers need to embrace this notion in dealing with clients, especially when the client makes an error in judgment. Let me give you an example.
Recently, a client said that it was contacted by a government agency. The agency was investigating why a particular employee was denied his health insurance benefits after termination. It turns out that the client had an absolute rule, no exceptions allowed, whereby benefits were denied whenever an employee was terminated for a certain reason. I didn’t think much of the rule, not only because there was no practical benefit to the client, but also because I thought it might be susceptible to legal attack. The call from the agency only confirmed my fears, although the client ultimately dodged the bullet.
It would have been natural, and easy, to have criticized the client. This doesn’t always involve an overtly critical comment; often, a slight change in the tone of voice, or body language, or a facial expression can just as effectively communicate your displeasure at the situation.
Instead of being critical of the client, and lecturing on the law, I made the following points:
- The complaining ex-employee may have done us a favor.
- The regulations dealing with this situation are like hieroglyphics and are hard to understand.
- This allows us an opportunity to revisit our policy and consider revisions to it.
In short, the client saw not a problem, but a positive development, and did not go on the 'defensive.' None of us would want a physician who only treats the symptoms but doesn’t cure the disease. Likewise, a lawsuit or a governmental inquiry or the like is often a symptom of a deeper problem. We need to keep this in mind, and treat the disease, not just the symptoms. To return to Dean Salacuse:
One of the talents of effective advisors is to make the clients see the positive opportunities in a situation, to see the glass is half-full rather than half-empty, to view a problem as a chance for improvement rather than a certainty for disaster.
And, speaking of defensiveness, we need to help clients’ lower their defensiveness, which chokes off the flow of facts, and increase their openness, which opens the spigots of useful information. Try this: Use the phrase 'the more something goes without saying, the more it needs to be said' whenever either of you says or hear something that seems obvious. Using this phrase gives the client permission to say what she thinks, without the risk of looking foolish or sounding dumb. This helps develop a common language with the client, not unlike spouses who understand one another, without a word being spoken.
Rule 8: Respect Your Client’s Opinion
From time to time, clients want you to do something that you believe is not the absolutely best tactic. Lawyers need to be especially careful, however, about coming to the conclusion that every difference in judgment warrants the lawyer saying, 'No, that is just wrong and will backfire.' The ultimate 'no' should be sparingly used, not unlike the use of salty language. When something is seldom used, the effect is greatly amplified when it is.
A lawyer acquaintance of mine told me the following story. A lawyer was filing a summary judgment motion in a federal court case. The client wanted to add an obscure argument to the motion dealing with the collateral estoppel effect of an administrative decision. In fact, the client thought it should be the first argument. After negotiating with the client, the lawyer dropped the argument to a footnote. Well, you can guess what happened. The court granted the motion, relying entirely upon the footnote.
Upon receiving the memorandum opinion, the lawyer called the client and told him in a jocular way: 'I’ve got good news and bad news. The good news is that the motion was granted, the bad news is the court relied on your footnote.' The client shot back: 'Well, in that case, I’ve got bad news and worse news. The bad news is you’re not going to handle the appeal, and the worse news is your law firm is fired from all other cases.'
I don’t think this is an extreme example. The lesson is not that 'the client is always right.' Rather, it is that clients are often the very best source of strategy, tactics and information about how to solve a certain problem. We ignore their wisdom at our own risk.
Rule 9: The Client Makes Business Decisions, Not You
From time to time, clients want to put us in the position of making the decision for them. This comes from a variety of sources: A company executive may want to put the blame on someone else if the matter you’re handling goes wrong, or it may be a matter of business inexperience on the part of the client. Whatever its source, it is vitally important that the lawyer, at the outset, help the client understand the difference between a 'legal' decision and a 'business' one. This is a three-step process.
First, as a threshold matter, the lawyer needs to determine the approach the client prefers to take. Here are a couple of tactics you can use to do so:
- Focus the client’s attention on what the client has done to resolve the matter. For instance, ask simple questions about what the client perceives to be its options: 'What have you already done to try to solve the problem?' or 'What options have you thought about or are you thinking about trying?'
- Focus the client on what the client perceives is its objective in the matter. Is the objective to try the lawsuit because a settlement would simply encourage others to sue or is the objective to manage the risk to the company by settling? Remember: When you and the client seem to be losing focus, ask yourselves: What are we trying to achieve?
Second, present all of the options to the client — that is, the options that will assist in solving the problem. This entails more than going into full-fledged litigation mode. To borrow a concept from the medical profession, sometimes invasive procedures are called for and sometimes not. This development of options can involve, for instance, 'creating evidence' before suit is filed. (Note I didn’t say manufacturing.) This phrase is simply shorthand for making sure that the client’s pre-suit actions generate the facts that will give the jury a reason to find affirmatively for you, not merely an excuse to find against your opponent. It can also involve simply picking up the phone and asking the other side what they want before declaring all-out war.
Third, in keeping with rule number two, it is okay to tell the client what you would do, as long as the dividing line is clear. The question can be answered directly, but with a caveat. My preference is telling the client, 'I’ll take my lawyer’s hat off for a minute and put on my manager’s hat…' or 'If I was sitting in the CEO’s chair and it was my company to run, then I would….' After this, however, the lawyer should refocus the client on all of the options that present themselves, not simply the one the lawyer would choose should he or she be in the driver’s seat.
Rule No. 10: Manage Expectations
Like Rule No. 1, Rule No. 10 is a 'home base' rule: Learn how to manage a client’s expectations. This is not to be confused with manipulating the client. Rather, what I am talking about is making sure the client understands the legal process, comprehends what it entails and embraces a realistic view of the matter. And the verb 'manage' is deliberately used; this rule involves an ongoing process, not a one-shot effort. Most successful CEOs do exactly this. When a CEO does so, the price of stock in her company rises; when you do, the client is positioned to be neither unduly surprised on the upside or on the downside, and your credibility rises. You cannot effectively communicate with a client holding unrealistic expectations. He won’t hear what you are saying.
The practice of law takes its toll. It’s frustrating and often seems counterproductive. We settle cases not because the person really is a victim of discrimination but because he or she has a compelling story to tell and we’re concerned about juror identification with on-the-job trauma. We do not expand the economic pie, we only help in carving up how it’s divided. When we get a summary judgment, or win a case at trial, we feel equally frustrated: All the expenditure of time and effort and the client is no better off — the status quo prevails. (Sometimes it’s worse. As Voltaire said, 'There were only two times in my life I was financially ruined. Once is when I lost a lawsuit, and the other is when I won one.')
Developing your 'EQ' can, however, make the practice of law more enjoyable. Here’s an example. I had represented a client for a few years, with one particular person as my contact. She was a high-ranking executive and we’d spent a considerable amount of time together. One day she introduced me to some new subordinates as her 'consigliere.'
Naturally, I flashed onto images of The Godfather, John Gotti’s lawyer and Tony Soprano. Was I really that unctuous? Did she consider me that unprincipled? I quickly realized, however, that this was a compliment, not a slam. Driving home that night, I slowly realized something else: Her comment was a wonderful reminder of why we do what it is that we do. +
About the Author
The author is a partner at the Dallas, Texas firm of Clark, West, Keller, Butler and Ellis. He writes a monthly publication on employment law called 'The Texas Employment Law Letter.' This article originally appeared in the March 2000 issue of The Texas Bar Journal and is reprinted with permission.