Solo In Chicago…Grow Your Practice!

“Yes Mr. Smith, court today went well. The judge is putting a lot of pressure on the other side, and while we still have a bit of a road to hoe, I am guardedly optimistic about our chances here.”

“By the way, as I mentioned in my last letter to you, the retainer you paid me will soon be exhausted. I will need another payment from you within the next two weeks or I will be forced to withdraw as your attorney. I would prefer not to go this route, but this is a business.”

If you are a solo attorney perhaps you have been in this situation, and to me, it is one of the more awkward aspects of running a small office. How to provide great advocacy and service on the one hand, while on the other hand, appropriately nudging late-paying clients in the right direction, or when push comes to shove, dropping those clients altogether.

I recently had breakfast with a colleague who transitioned from running his own office to a larger firm in the same practice area. When I asked him about this very situation, he mentioned that a client rang him to complain about the unfriendly call that the client received from accounting. Fortunately could take the position of  “I don’t know anything about that, but hey, if they pull the plug, they pull the plug.”

Of course there are ways to minimize this situation, that include the following, but it is tough when the uncompromising businessman and the sympathetic advocate are the same person.

• Counsel clients so that their cost expectations are realistic, and do this at multiple times throughout the course of representation.
• Do a good job of assessing the case and get an appropriately sized retainer fee, with a little wiggle room for the unexpected.
• Give clients plenty of heads up before the money runs out. Have hard and fast rules about when they will be notified and make sure they know those rules up front.
• If you have to put the payment pressure on and you are the only one to do it, bifurcate the communication. Counsel the client as you would, but when you call or write about payment issues, communicate only about payment.

Sooner or later though, it is going to happen, particularly in this economic climate. And it might be a little awkward. You have a client you really like, and a case that is quite interesting. On the other hand, business is business. You think ‘I do it this time, and next thing you know I am going to be running a pro bono outfit.’

Even if it is a client you do not particularly care for and a case that you have seen before, you cannot walk away just like that. As attorneys, we have ethical considerations and obligations to our clients, regardless of the money in our trust account.

So what do you do when there is nobody else around to put the financial pressure on? Or even when there is, when the client knows who is making that decision? Is it as easy as distinguishing advice calls from money calls? How do you communicate to a client that you have the gas pedal all the way to the floor until the clock says 0.00 (but once the clock says 0.00…)?

Or not?

I’m admittedly piggy-backing off this article I saw over at The Wall Street Journal, Why Your Adviser Should Make House Calls. Note the perspective of the article is focused on financial planners and estate planning attorneys. Several estate planning attorneys are quoted in the article with their reasons FOR making house calls summarized by the following:

• It personalizes the relationship.
• Simple geography.
• It helps information gathering. You see a car or art collection that might not otherwise have been raised.

All very good points I suppose. I do find it curious as someone who does SOME estate planning & someone who also works with a handful of non-attorney estate planners that it’s the norm for non-attorney estate planners to make house calls. Conversely, in my experience it’s the norm for estate planning attorneys NOT to make house calls.

Is my experience different than yours? Is there a good reason for this distinction?

I make occasional house calls with client age/mobility typically being the primary motivating factor. I think this can be an easy way for you to distinguish yourself and an example of great customer service. Specific to estate planning lawyers, oftentimes when you’re preparing an estate plan there will be one informational meeting up front and then a final document execution meeting at the end. Maybe you do 1 & 1…the informational meeting at a client’s home and the document execution meeting at your office because then it’s nice to have easy access to office staff to serve as witnesses and copy machines handy.

And in many legal fields the advice is likely never make house calls. In some of the areas where personal safety and mental imbalance are common in clientele I want to keep the relationship as formally lawyer-client as possible. In these sorts of matters the general line of thinking is…clients are not my friends!

As a Chicagoan during our current election season I equate “Before it’s too Late” with the 1983 Chicago mayoral election between Bernie Epton and Harold Washington. It was one of Epton’s campaign slogans with more than a hint of racial undertones…actually a very fascinating campaign to review for you political scientists out there. But SIC is a small firm lawyer blog all about Growing Your (Our) Practice so…

I’ve had a rash of new clients lately who have retained us TOO LATE! Not too late to help them (we wouldn’t take their money if we couldn’t help them) but surely later than would be ideal. Do you have this problem too? And what’s the solution because this is more of an ‘identify a problem’ post than a ‘give readers a solution’ post.

Here are the personal examples I’m talking about, such as people who don’t have representation when dealing with parentage decisions (I don’t mean the sex). Meaning people are committing themselves to legal parentage before knowing the ramifications. Or, father’s in parentage cases who ignore the retroactive child support issue and then just “take” a $10k judgment against them that could have been avoided. Or, people who let the other parent go to another state with kids and kill their parental rights. And each of these examples involve people who became clients of ours to help with subsequent issues but HUGE ISSUES had already be given away due to their actions before I was their attorney.

Why do people consistently make this mistake & how can we help clients to stop making it?

I suppose at some level this is a general “inertia problem” like anyone with a ‘To Do’ list that gets done slowly, but, the ramifications can be far more severe in the context of legal matters. Further, this can be the downside to DIY (Do-It-Yourself) or to invoke my favorite Rumsfeldian quote there’s that category of things “we don’t know that we don’t know.”  I just retained a client who hurt his case greatly because when he was pro-se he consulted Dorothy Brown’s Website (Court Clerk of Cook County, Illinois) regarding how to serve process and 5 months later his son and the child’s mother are halfway across the country despite the fact that she “needs” to get leave of court to leave Illinois w/ the child.

And the solution?

• Client education marketing. I’m going to include a short video on this topic in the context of parentage cases in our October client newsletter as a first step.
• Summons alert. Can greater alerts be included on the summons and initial documents a litigant receives?
• Remove “case bias.” This is the public policy problem that I’d like to work to change…the bias in favor of child support obligors often at the expense of an involved and intact family. Or the defendant bias that seems to exists in mortgage and landlord-tenant cases. Note that many of my personal examples surely come from the disfavored party in Parentage Act cases.

The more time I spend sitting around courtrooms for my own cases & even more relevantly for this post, the more time I spend sitting around courtrooms observing other lawyers, the more strongly I feel that the title above is CORRECT!  I’m sure there’s an exception or two to the above where trials are inevitable such as in some of the criminal or personal injury areas, but in many, many practice areas court appearances tend to be mostly of the “status report” variety or mere formalities to have a judge sign-off on some settlement. And that’s why you need to do your heavy lifting/lawyering back at the office.

I think too many lawyers & clients do not get this.

How do you know if you’re not doing enough strong lawyering outside of court? The fact that you or your cases are in court too frequently might be the first strand of evidence. Second, are you in court too much on matters that are mostly logistical in nature like discovery disputes or temporary orders or mere case logistics? I just observed a big deposition controversy in the last few days at Daley Center that surely should have been handled without judicial intervention.

I think of the in-court vs. out-of-court balance as very similar to athletics where 90% of your time is spent practicing and games comprise only 10% of time. Practices are where the heavy lifting occurs and your skills are developed. If you attend a football game you can tell who worked hard in preparation for the game in comparison to the person who sloughed-off during the week thinking he could just show-up on Saturday and make things happen. The courtroom picture is very similar. I can almost always tell which lawyer has communicated with opposing counsel long before this court date or has been pushing her client to answer discovery or speak to the other party about settlement or push the case forward generally.

Here are 5 reasons to step-up your Outside-the-Courtroom Lawyering:

1. Less court = Less lawyer/client hassle. I don’t mind going to court and frankly I like a good old contested hearing once in a while but you can’t tell me that most clients enjoy going to court. Nope, most clients dread going to court. It’s time off from work, coming downtown, paying for parking, and just an uncomfortable high stress situation in general. I talk to clients up front about 3-4 case approaches from mediation to lawyer as mere scrivener to cases where EVERYTHING is in-court and strictly between the lawyers. Once in while I do end up in the extreme category where everything happens in court and only between the lawyers, but honestly that’s the worst place on the continuum to be.
2. Client Ownership & Client Actualization. Every case is the client’s case. I might live with a situation for several months or sometimes a couple years but it’s the client’s for life. I’d rather have great input in shaping the terms of a judgment instead of strictly having terms imposed on me. List client action points with every letter you send after a court date and check-in with clients via telephone/e-mail to make sure progress is happening.
3. Be a Level 5 Lawyer. Jim Collins in Good to Great talks about Level 5 leaders as the essential leaders where certain companies made the jump from good to great. The book analyzes the traits of certain select high-performance corporations. In a nutshell, Level 5 Leaders “blend extreme personal humility with intense professional will.” I think there’s a relevant parallel to lawyers…the ideal “Level 5 lawyer” has intense pride focused solely on the case result and client satisfaction whereas many lawyers sort of want to pad their ego by keeping case decisions only in their hands and subtly raising their own importance while undermining client satisfaction and frequently worsening case results.
4. Start with the End in Mind. Once you’ve been retained by a client, you should immediately set out a case map with your client laying out time-frames, action points, and the major decisions that will be decided over the course of litigation. Get the client engaged and working on her case immediately. In my practice using the example of a dissolution of marriage case, decisions are typically going to be made regarding 1) property division, 2) maintenance, 3) child custody, and 4) child financial support…talk through the statutory standards on those matters up front and see if the clients can work through these matters together. If the clients can make these decisions themselves great, if not make sure you’ve done your strong out-of-court lawyering so you know where court intervention IS necessary more quickly. The trouble is when 6 months into a case a client may not even yet know or understand the items a court may need to decide or the decisions that need to be made.
5. No fights about temporary orders or discovery, EVER. Granted I can’t always achieve this but it is a rule of mine that I tell clients up front. This is the crap that wastes critical dollars, lawyer time, and is wholly unsatisfying. I never want to be the lawyer in court from a few weeks back who had to argue about re-scheduling a deposition in open court. The mother has custody of the kids while the divorce is pending, keep supporting them, keep the temperature down, and work out a parenting schedule between the two of you.

We were recently retained by a client strictly based on the above. It felt quite good actually. This is an entity client and the point person in charge of finding an attorney happened to be an old friend of mine. Sadly (but not particularly unusual) she’d had some poor experiences with a number of attorneys they had worked with recently so they were looking elsewhere. This person had known me for several years, although we had lost touch for several years too, knew I used to practice in the area in which they needed representation and….great, we’ve got ourselves a new client.

Do you have clients like these? Do you want some? I wouldn’t mind a few more myself. I think this concept and client-type is very much at the core of Clients for Life which is a great read and something I’ve written about in the past. Because these sorts of people who just trust you and your judgment implicitly are the sorts of clients who will be your clients for like 30 years and probably refer another 30 clients to you over those thirty years. I call that cost efficient advertising.

And yet I observe many habits in lawyers too often that specifically undermine a client’s trust. Some examples:

Lawyers OVER-Promise & UNDER-Deliver. I see this most frequently in simple timing stuff…suggesting something will be done more quickly than is realistic but also in putting forth unrealistic predictions of a case result. Talk through all possible scenarios realistically.

Lawyers DON’T Tell Clients What They DON’T Want to Hear. I find that if I’m agreeing with a client too much there’s often a problem. The problem being I’m sugar-coating things instead of laying out some tough realities that may not be pleasant for a client. Good clients like good leaders want competent and strong advisers around them who are tough, smart, and are leveling with them about ALL possible scenarios.

Lawyers That Aren’t Thorough or Detail-Oriented Enough. I just spoke with a lawyer friend in the last week who called asking me about a post-divorce situation where this new client’s divorce settlement documents included 2 provisions regarding these parents’ (ex-spouses) daycare expense obligations that were wholly opposite of one another. Meaning, in one place the judgment said mom pays for all daycare expenses and in another place judgment said mom/dad split these expenses 50/50. Would you trust the lawyer scrivener of that document again in the future?

These Really ARE Clients for Life. So treat them that way! And beyond just the above, don’t be nickle-and-diming them for the occasional phone call, but rather be constantly looking out for their interests and sending them related notes/articles.

These sorts of clients are BIG. Look, I do plenty of my 1-time, quick legal representation…it’s good work sometimes and necessary. But these great clients who really like and trust you are the clients who make your practice thrive for the long term.

We’re all in the business of retaining clients but there are times when a person is best left a non-client…better for both the lawyer and non-client. Because I strongly believe that there are situations when lawyers are unnecessary and often destructive. And taking on clients where you obtain a poor result and run up a client’s fees unnecessarily surely isn’t the sort of reputation building you need to really “Grow Your Practice.”

I’m constantly amazed and appalled in many of my domestic relations referral program appointed cases where I’m defending clients against indirect civil contempt. These cases are frequently post-judgment matters in divorce. More often than not an upfront review of the case file and discussions with my “new” client uncovers not only high levels of lawyer dissatisfaction but also tens of thousands of dollars in attorney fee judgments against these former clients. In other words not the sort of glowing client testimonials likely to bring those referrals and repeat business knocking on your door.

So when does a person REALLY need a lawyer?

It depends on the person and the definition of “need.” I suppose the continuum ranges from lawyer as replacement 3rd-party actor doing something a client could do herself but simply chooses not to (like using a landscaping service) to the most specialized of legal work where the intimate knowledge and experience of a lawyer is critical (think capital murder defense). And there’s nothing wrong with serving at either of those extremes…it’s honorable work to be your client’s trusted adviser on a variety of life’s complications. But oftentimes I think the honest assessment to a client that he should handle something himself bolsters your reputation (like parents arguing about visitation schedules or knowing that there’s not a legal solution to the potential client’s problem).

Here’s a guide I’ve developed (and heard many of these points made by judges) to answer the question, Does This Person REALLY Need a Lawyer, within the divorce field…maybe you can modify my list to polish your client selection discernment within your niche.

1.  No property and no children and short-term marriage=don’t REALLY need a lawyer. Unless a party simply wants to hire you like the landscaper, to avoid the hassle of a task and would prefer just paying someone to do this for them, no property/no children often should equal no lawyer.

2.  Property and/or children=REALLY Need a Lawyer. Simply way too many ways to blow money here like not knowing how to calculate “Net Income” for child support purposes if no one knows what they’re doing.

3. One party has a lawyer=the other party REALLY Needs a Lawyer. This is a recent add-on category for me that I think crosses the spectrum outside of my little family law world because if one party has a lawyer the pro se party is looking at potentially getting screwed BIG-TIME. I have several examples of this happening but a recent scenario that crossed my desk is the best…a couple both likely in their mid-50s divorces with several children but all the children are adults and beyond college age. The party with the lawyer talks the pro se litigant into having a $20,000ish judgment entered against the pro se litigant for a child support arrearage for a time period some 5-7 years prior when the kids lived with her. Judgment was to be paid out in installments. So, this guy is stuck with a $20k judgment because he didn’t have a lawyer…no way something like that happens with simply the most minimal trained opposing counsel.

Does this person REALLY need a lawyer? It’s likely one of the first issues you should be discussing at new client consultations. I think it’s an effective way to sort of play on the “scarcity principal”…I don’t take every little case that walks in the door. An important part of good client counseling.

Any opinions?

The farther I go and the more experiences I have the more I believe that it’s most critical that I nudge and persuade clients to face tough times and hard decisions. Because the issues or decisions that must be faced may be fairly simple but not easy.

This fact has been magnified over the last year or so that I’ve been part of the Domestic Relations Lawyer Referral Program run through Judge Jacobius’ office. I get appointed a client or two every 6 weeks or so often dealing with a failure to pay child support. But what’s most infuriating for me is that some 75% of the time there are substantive things and defenses that can be raised but the clients refuse to face the situation and deal with the tough times. They won’t pull together simple financial documents (tax returns, pay stubs, ect.) for me to review and help mount a defense. And even worse they won’t bring that stuff to court when there’s a hearing where if it goes the wrong way they might be exiting the courtroom out the back door in handcuffs. It’s classic with a guy I’m representing right now, he doesn’t communicate with our office until at the earliest the day before court and often the morning of a court date. And with many of these cases all that the judges want to see is some effort being made…compliance need not be perfect.

What to do?

I’m planning on more required in-person meetings with clients. It seems the letters and constant phone calls haven’t done. I’m going to require these people to look me in the eye and face facts.

Are you good at this? Are your clients? I think both groups need to be good at this but too often they’re not. And I’m particularly amazed when lawyers HAVE TO say something that hurts their reputation and often their clients case.

As for clients, I’ve definitely learned this is something that you must actively counsel and not just expect clients to testify properly. Critically, clients must control emotions. I can think of a long-term case of mine where one sentence at a deposition has continued to bite my client in the butt for several years running. And it was mainly because the client was/is far too emotional.

But lawyers do it too. And I’m talking from different lawyer forums where the issue is just offending another lawyer (I say it’s probably better to keep friends) to the pre-trial stage of court proceedings where over disclosure is potentially hurtful to a client’s negotiation or at a potential trial in the future.

Be a disciplined lawyer who brings value to a client’s case and not an egotistical lawyer who wins the argument out in the hallway while torpedoing the larger case.