McElhaney on Litigation
Sometimes, You Must Choose Between Giving Them Lots of TLC and Showing Them the Door
Posted Jul 13, 2004 2:22 PM CDT
By James W. McElhaney
I walked into Angus’ office and set a box of apple-walnut bear claws and a fresh pot of dark mountain roast on his desk.
“This looks serious,” he said. “Have you been indicted?”
“Nope,” I said. “I just need a little help with my column.”
“Of course,” Angus said. “But next time, don’t scare me with a half-dozen bear claws. Two are enough. Do you have a topic?”
“Problem clients,” I said.
“Perfect,” said Angus. “I don’t know any lawyers with clients who don’t have some seriously difficult ones.”
“That’s because of what we do for a living,” said Flash Magruder, who walked in and sat down in the leather chair. “We represent difficult people—folks who can’t solve their own problems—which are often created by the way they act or how they conduct their business in the first place.”
“I’m sorry,” I said to Flash, “I didn’t know you had an appointment.”
“I don’t,” Flash said. “I stopped by to get some quick advice about how to deal with an obstreperous client, and walked in the door when I heard you talking about my problem. By the way, are those fresh bear claws?”
“The starting point,” Angus said, “is to know everything you can about your potential client before you take the case. Not just to verify what you’ve been told about the dispute, but also to do a background check on who you’re thinking about representing. It’s troubling to invest several hundred thousand dollars in a big case only to find out that the CEO of your client has a conviction for criminal fraud for running a car-theft ring in Utah.”
“Or whether they’ve ever filed a lower-back-injury claim before this one,” Flash said.
“Tell me about it,” said Beth Golden, walking in the door. “And it’s not enough just to know whether they have criminal backgrounds or filed similar claims before. You need to know whether you can trust them—and even more important, whether you can stand working with them. By the way, does anyone have their name on that last bear claw? The folks in the Donut Hole said Jimmy walked out with the last six.”
“Wait,” Flash said. “I’m not sure I agree with Beth’s touchy-feely idea that you’ve got to love your clients.”
“I didn’t say you’ve got to love them, or even like them,” Beth said. “But if you can’t stand them, you’re not going to be able to do professional-level work for them, so probably someone else ought to represent them.”
“I agree with the idea that who is a difficult client depends in part on who is the lawyer,” Angus said. “So you need to be aware of how you feel about the new bundle of problems you’re taking on. There are some folks you ought to be wary of. The problem is, we typically pay more attention to the details of the case than we do to the kind of client we have until it’s too late to do much about it.”
I was just beginning to wonder whether Angus would come out with one of his famous lists. And here it is.
Steven Rosen of Portland, Ore., tells about the nice elderly couple with the solid personal injury case on a contingent fee that drove his entire firm crazy by calling at least once every single day for months.
They lived on the other side of the country, and their questions always required long-distance callbacks. At first it was just odd little questions about their case.
But then those turned into requests for free advice on every conceivable legal question that popped into their heads.
“There’s no one right way to handle a situation like that,” Flash said. “If the word gets around that you’re blowing off your clients, it can really hurt your reputation.”
“You could tell the clients that questions about their case are included in their contingent fee, but you’ll have to charge your standard rate for their other work,” Beth said.
“I like that,” Angus said. “It’s a lot better than what the Milwaukee lawyer called the ‘Artful Dodger’ did with a constantly hovering high-maintenance client.
“This client was so persistent, he would walk over to the firm’s offices when he couldn’t reach the Dodger on the phone. So the Dodger had the receptionist give his secretary a buzz whenever this client walked in the door.
“Then the Dodger would put on his aviator sunglasses and walk eight floors down the back stairs to the coffee shop. Apparently the client thought the Dodger must be a terrific lawyer to be so busy, and the firm never lost him.”
A special variety of the high-maintenance client is the micromanager.
Large corporations with aggressive house counsel, “Rambo clients” for whom hardball litigation is part of how they do business, and some insurance companies that insist on never fully paying any claim (no matter how valid) specialize in micromanaging.
The problem is, they want to run the entire case, but they want you to take responsibility for what happens.
Even though it’s the clients’ case, you still owe them your best professional advice. So you may find yourself constantly telling clients that what they want to do can cause them a lot more trouble than they are already in.
And there are “Rambo firms” that seem to specialize in dealing with this kind of client. They are the ones that noisily and aggressively overlitigate all of discovery and pretrial preparation—convincing clients that they’ve hired the meanest dogs in town. Then, after spending far too much time and money venting their client’s spleen, they ease the case into a settlement that could have been reached at less than half the cost.
You already know this isn’t an ethical way to practice law. It’s also an unethical way to engage in client entertainment.
Some corporate clients—especially the ones with a management system that plays competing teams against each other to find the best solution to a problem—will play whole law firms against each other in big cases.
It’s an awkward way of splitting discovery between different firms to make pretrial practice a law firm “beauty contest” as well as trial preparation.
It courts disaster because no one firm has a handle on the entire case. No matter how carefully you later read every deposition and pore over the interrogatories and pretrial motions, there is no substitute for having been in the case from the beginning.
If you find that this is what clients are doing, you have an ethical obligation to point out the danger they’re facing—even if it means they pick some firm other than yours to be in charge of the case.
People will walk in your door who turn out to be fixated on some strange principle or misconception. Typically, these people need help that you’re not qualified to give, although sometimes all they really need is for someone to listen to their troubles.
Take the case of the young Dallas lawyer—a former assistant U.S. attorney—who was in his office when an elderly man walked in the door. “I’m here because you’ve got the reputation of being the most fearless lawyer in Dallas,” the man said.
The young lawyer smiled and said, “How can I help you?”
“I’ve come because the FBI put a radar bell on me, and it’s driving me crazy,” the man said.
“A radar bell,” the lawyer said. “What’s a radar bell?”
“It’s a secret electronic machine,” the man said. “They just turn it on, and they can see you and hear you wherever you go.”
“How do you know it’s on?” the lawyer said.
“Because I can feel it,” the man said. “It’s on now.”
“Then they must know you’re here,” the lawyer said. “I’m going to put a stop to this.”
He picked up the telephone and told his secretary, “Get the U.S. attorney on the phone.”
When his old friend, the U.S. attorney, came on the line, the lawyer said, “Mike, he’s here ... What do you mean, who? The one you put the radar bell on, that’s who. And you better turn it off right now, or there’s going to be trouble!” And he slammed down the phone.
Five minutes later, the man said, “It’s gone! They’ve turned it off. How can I ever thank you?”
“Glad to help,” said the lawyer. “There’s no charge. It’s all in a day’s work.”
But it did cost the young lawyer dinner the next Saturday night.
THE SMELL TEST
Peter Baird of Phoenix says there is a way to spot a particularly difficult client: when the whole situation smells. Everything this person says gives off a bad odor. There’s something rotten in the client, in this transaction, and what he is telling you. If things don’t go his way, he will turn on you just as fast as he’s turning on his former partner or boss, and implicate you in the entire mess.
“And yet,” says George Bramblett of Dallas, “not all bad people are bad clients. One of the most revered lawyers in the United States is still the late Edward Bennett Williams. He built his practice and firm in part by representing mobsters and crooks—people most ‘white shoe’ firms would never touch. But he always did it ethically. As Williams used to say, ‘If anyone is going to jail, make sure it’s your client, and not you.’ ”
James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.