As someone who, over a period of 14 years, ran various forms of litigation/dispute resolution teams, I have seen substantial change in the market. But I have a clear view on what makes for a successful practice.
In simple terms, clients are interested in outcomes and not the process. Unfortunately, too many lawyers get caught up in the minutia of the case, the Civil Procedure Rules (“CPR”) or a plethora of case law and forget that nearly all clients see litigation as a necessary Evil and recognise in most cases that the only parties to benefit are the lawyers!
This is the simple message but, as practitioner of Excellence, I believe there are some house Rules that, if followed, can lead to the development of a successful and, more importantly, a sustainable practice.
I say “Rules” but they are nothing more than common sense; but seem, very often, to get lost in the translation of best practice.
Does the client need to pursue the case or defend it prior to issue?
They may want to but that is not the same. Yes, there is a requirement to weigh in the balance the costs/benefit and there might be a strong or even a compelling case, but I would still push back with the client and ask them if they (genuinely) need to pursue or defend the case. Don’t be afraid to answer perhaps the most telling question – and one that I was constantly asked – if it were your case/money would you pursue it? If there is any element of doubt or you wouldn’t, then be up front with the client!
If, after this sort of critique, the client still wishes to push on then the moral questioning that undoubtedly goes on in your mind as the client spends more and more money is, I would hope, sufficiently assuaged.
Can the client afford to fund the case?
Even in modest cases, we all know the costs can quickly escalate. Try to give the client the worst case scenario, and, save where they might have insurance in place, it is absolutely right that you give consideration to the client’s ability to fund the case.
If they have a limited budget then be very careful: as we know, litigation is a fast-paced escalator and once on it, it is difficult to extracate your client and worst still your firm.
Conduct an early costs/benefit assessment. If the case is marginal then you need to be cautious about taking on the case.
I have seen far too many cases where the arguments are so finely balanced – perhaps as fine as a cigarette paper – that you wonder why anyone in their right mind would have lent their firm’s name or reputation to the case.
Please use the telephone – both in speaking to you client and your opposite number.
Why is it lawyers like to hide behind a prolix exchange of emails or worst still faxes?
If you must send an email or fax then one a day is normally sufficient.
Sometimes I felt like it was like WWII with emails: Who could send the earliest or latest and who would get the last blow in even if that meant that in excess of 5/6/7 emails had been sent.
Is a client really going to be that impressed? In my book it makes you look desperate.
Unless there are matters that require urgent attention – and they do arise from time to time – litigation is not a game. Treat it seriously. If in doubt speak to your client. Also, set some ground rules with the other side.
But, when all is said and done, there is nothing or practically nothing that can’t be sorted over the phone or even by video conference. I think as lawyers we have got into the habit of practising defensive law, and there is an increasing tendency to want to have the blanket of lots of written communication even though so much gets lost in translation or worse still it gets misconstrued and just raises the temperature and pushes the sides further apart.
Think settlement at the first and every opportunity.
This speaks for itself. But I think a lot of lawyers seem to want to pontificate or exaggerate the difficulties before any serious engagement takes place.
In my experience no case that I ever dealt with was not suitable for settlement of one sort of another. Yes, mediation is very effective but there are other ways: mini-trials, expert adjudication (even without an express clause), involving a neutral third party or just bringing together both sides.
Stop thinking like a lawyer and put yourself in the position of the client.
Yes you still need to be sufficiently disinterested to advise objectively, but never forget that you are plying your trade with someone else’s money and putting at risk their potential livelihood etc. Again, this picks up the point of Rule #1.
Don’t try to run too many cases. Less is more with dispute resolution.
I once worked with a brilliant litigator and I can’t ever remember him having more than a dozen cases at one time. Admittedly they were all substantive cases and perhaps you are not in such a privileged place but attention to detail, working out the issues, dealing with settlement and keeping the client regularly informed will dissipate the more cases you have.
Use language that a 10 year old would understand when communicating with your client.
Lawyers have this ingrained habit of thinking that the more impressive they sound to their client the more complex the case is made to appear. This presumably begets higher charges! Nonsense. If you think you are writing to a 10 year old child you are unlikely to use very, very simple language but it will make you think more carefully about what plain English actually means. And I don’t just mean the choice of words but also the sentence construction or sending through court documents with a clear and carefully worded explanation. Why on earth would a client understand what a Tomlin Order was!
Keep reviewing the case and talking to your client.
Don’t be afraid to turn your “Taxi Meter” off from time to time. [These are not my words but that of a High Court judge!]
Can you really justify every 6 minutes or more likely can you answer the question: Are you adding value?
I remember one firm (that of course shall remain nameless) who used to send a letter to acknowledge a letter even if they said nothing else. Now you can bet that that went down as 1 unit.
Start with the First Rule of The Go-Giver co-authored by Bob Burg and John David Mann:
“Your true worth is determined by how much more you give in value than you take in payment”.
If you must record every single item then still consider at the billing stage if you can answer this question.
Believe in your case.
Solicitors have fees pressures – in some cases they are expected to generate up to x5 of their salary – but they don’t operate under the Cab Rank Rule. Now I am not naive enough to believe that where you are acting for an important commercial or private client you have the luxury of saying: “The case sucks and I am not taking it on”; but if you have gone through the above Rules I would hope that you arrive at a point where you have a strong belief that you are acting in the client’s best interests and more than that you are passionate about getting the very best outcome you can for the client. When it comes to service delivery it makes such a difference. The client frankly is not interested in your reasons for a delay in responding to their email and the basis of your massive case load or the fact that you don’t really like their type of case. They want to believe that you are giving your heart and soul to the outcome.
Like all lists this is not exhaustive and no practice is perfect, but I strongly believe that if you adhere to these rules you will quickly garner a very good name in the market and Word of Mouth marketing will ensure that you have a steady stream of cases referred to you. And that is not just from the external market but from the internal market.
Litigation is often the poor relation when it comes to training. There are some great providers out there but frankly knowing the minutia of the CPR just doesn’t cut it for me.
My advice is at the next team meeting you take some of these issues, or indeed your own, and discuss how you can improve your profile and attract more clients by reputation management, which is what a lot of this is about.
I would be really pleased to hear from you if you have any recommendations that you can share or strategies that have reshaped your practice. My email is firstname.lastname@example.org.