Reality Checks: Lawyers must manage client expectations by being upfront about what ispossible and what is notAuthor(s): JILL SCHACHNER CHANENSource: ABA Journal, Vol. 83, No. 11 (NOVEMBER 1997), pp. 60-62, 64Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840109 .

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LAW PRACTICE

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BY JILL SCHACHNER CHANEN

Houston lawyer Stephen Sus man has a lot resting on his reputation these days. Shortly after cigarette manu

facturer Phillip Morris hired him to help defend some of the lawsuits filed against it, Susman found his image plastered across the cover of a magazine with the headline de claring him "Marlboro's Man." The article said as much about the com pany's confidence in him as it did about its expectations.

Jill Schachner Chanen writes regularly for the ABA Journal.

60 ABA JOURNAL / NOVEMBER 1997

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? For Susman, a tenacious litiga Itor not known for shying away from

the media, the scrutiny was almost enough to make him cringe. "If I screwed up in that client's eyes, they wouldn't be calling me Marlboro's man anymore," he quips. "They'd be

saying, 'We fired his sorry a--. He's not Marlboro's man.'

"

Though few lawyers have to contend with such a public display of clients' expectations as Susman, examples of the problems those ex

pectations can exact on lawyers' practices and professional satisfac tion if left unmanaged abound:

An elder-law practitioner learns that the tax and estate plan ning services he offers are not the sort his clients are seeking. Instead, they want someone to rely on to help them manage their finances and re tain control over their own lives as

they age. A divorce lawyer realizes that

a client has mistaken her for a ther apist and expects the lawyer to fashion a grossly unfair settlement to reflect her anger over being left for another woman.

i"This is something lawyers constantly agonize over: 'How can I control the client, the case and the settlement?'

" observes Linda Rav

din of Ravdin & Wofford in Wash ington, D.C., a council member of the ABA's Law Practice Manage

ment Section. "You can talk to a client for hours, and then the client complains about the bill and about the lawyer. You start to wonder what is wrong with you because you can't make the client understand."

In the past, lawyers' services were valued highly enough to allow them to overlook these concerns. But now that the market has become more competitive and the legal con

I sumer more sophisticated, lawyers' Ifailures to manage these expecta

tions may have dire consequences. Attorney Charles Robinson of

Robinson & Chamberlain in Clear water, Fla., believes that lawyers who cannot master this skill will fall victim to the shakeout that al ready is beginning to thin the ranks of the overcrowded profession. Anec dotally, he has begun to observe this phenomenon in his city's domestic relations bar, where the majority of divorce cases have at least one party acting pro se.

Robinson believes litigants are

beginning to dispense with lawyers partly because of the profession's failure to concern itself with clients'

expectations. To survive, much less thrive, lawyers will need to re-eval uate how they are serving their clients by better understanding their clients' needs, no matter what segment of the market they are

serving, he says. "I started asking clients what

their problems were," says elder law practitioner Robinson, a past chair of the LPM Section. "They were not the problems I was solv ing. Death and taxes were not is sues for them anymore. Clients told

me they were afraid of losing con trol over their lives and their sav

ings. We had been taking a swipe at these [issues] but had not focused on them at the same level of con cern that clients had shown.

"If you put that into an expec tations template," he continues, "it

meant that we were talking about one thing and they were thinking about something else."

Robinson sees this failure to grasp client expectations as con

tributing to the view that lawyers' services have become commodities.

Clients, he says, now view pur chasing the services of a lawyer

much like they do buying a toaster. "It does not matter whether you buy the General Electric or the Sun beam," he explains. "You buy the one that looks the best and costs the least. It is not something you buy because it will be really valuable."

Robinson says lawyers who take the extra step to learn how to serve their clients' true needs can impress them by exceeding this perception.

However, he notes, lawyers also need to ensure that they are not overselling their services to clients who, for example, are looking for nothing more than a simple will or trust.

Ravdin, a domestic relations lawyer, says, "You do get a certain amount of professional satisfaction when you do a good job and get a

good result. But if you have a case where the client is really angry? and is angrier at the end of it?you never have a sense of satisfaction."

Lawyers also need to be aware of problematic client behavior so that its ramifications can be ex

plained to the client. "When people are acting irrationally, you have the most potential for it blowing up in your face," Ravdin says.

"You can tell the client not to behave that way because there will be bad consequences. Then the client does not listen, and the con sequences that you predicted hap pen. There is no professional satis faction in saying, 'See? I told you so.' The client won't remember that you warned him, and you are ex

pected to clean up the mess. If you cannot clean up the mess, then you are considered a failure."

Many lawyers unwittingly con tribute to unreasonable client ex

pectations through marketing ef forts, says law firm management consultant Austin Anderson of the AndersonBoyer Group in Ann Ar bor, Mich.

"There is a temptation to over sell when we are seeking to attract

new clients," he says. "It is part of the emphasis on

marketing at the present time. We want to get them in and face reality later.

"The best client rela tions are created at the time of the initial confer ence," he says. "That is the time where lawyers who have the least difficulty dealing with clients later set the stage and discuss in understandable terms

what the range [of options] is relative to the outcome."

Chicago insurance de

LINDA RAVDIN Clients with attitude problems need to hear how that behavior might affect their case.

ABAJ PHOTOS BY BOB GOMEL AND PETE SOUZA JOURNAL / NOVEMBER 1997 61

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- - i f?ense lawyer Manuel San- w^Wz^? chez of Sanchez & Dan- >

iels believes he has been able to attract clients like Chrysler Corp. to his firm by doing what many larg er law firms with a stable of Fortune 500 clients do not do: creating realistic expectations.

"As a defense attor ney, I would be the last person to promote my firm as the be-all and end-all defense firm that will win every case," he says. "In

stead, in today's market place you have to con vince clients that you are experienced, credentialed and qualified to handle matters in a cost-effective and efficient manner.

"That is a way of managing client expecta tions in a realistic fash ion. It also creates a con comitant obligation for you to deliver on that ex pectation."

But managing client expectations means more than just promising real istic outcomes. It means that lawyers have to edu cate their clients about what to expect in light of their goals, says Peter Turai, a tax and estate planning lawyer in Free hold, N.J.

"There are always going to be unreasonable clients," Turai says. "My job is to educate them as to what a reasonable expectation is. If I cannot meet [that], then I show them the door because the clients won't be happy."

Turai has had clients try to re tain him with the expectation that, because of his accounting and fi nancial planning background, he will help them avoid paying income taxes. "It is my job to say to them that there are ways not to pay taxes, some of which may not be legal and that I cannot advise them on those methods," he explains.

Instead, he provides options to help them reduce their current tax liability and to further reduce it in the future through his services. "I then ask them, Is this reasonable to you?'

" Turai says, noting that he has

changed the client's expectation by melding the objective of paying no income tax with reality. "If I set up different expectations that I know I

can meet, then I know the client will be happy because I have met those expectations.

"The process is no different for a litigation attorney who tells a client that he will knock the other side out," Turai adds. "When he does not, no matter how well the lawyer did, the fact that he oversold the probability of achieving it leaves the client disappointed."

Be Clear About the Process Houston's Susman of Susman

Godfrey emphasizes the importance of managing client expectations about the process as well as the out come, which he believes may well be

more important because outcome ?particularly in litigation?cannot always be controlled by a lawyer.

"In many respects, not receiv ing a good result is easier to handle than criticism about the way you handled the case because the penal ty for that is being fired. That is, in

many respects, worse than losing." All of Susman's new clients

must read a four-page statement in cluded in the firm's resum? on how

i J? ROBERT I il HEINRICH NI I Lawyers need to

B|HtfH| confront clients when L Hh9 their approaches to a EJEEB project differ.

pH^^P Susman Godfrey han I j^^m^i dies its cases. The mate

r; ! rial includes Susman's

iBr ft ! preferences for keeping * ^BlJ

* discovery disputes out

HBlff of court and not taking \? depositions.

"We tell them this jM is what we have found

W?U that works and what we

iHI are comfortable with,"

flS Susman explains. "If kJBk they want us to take a

?LJEHS different approach, then hHHh we talk about it." EHHh Nevertheless, em

j^^^^H ployment litigator Joel PHHB Bennett of Washington, y^^H D.C., chair of the LPM HHHH Section, stresses the im

(j^^^fl portance of explaining ^I^^^H the unpredictability of

^^^e jury verdicts and judi

^m^ 1 rial decisions to clients. jHSraf "Many lawyers just j^^HH do not pay attention to

^HHH the client relations and Wii^Ej business side of the prac Bp^pl tice," he adds. "They see

HHHH the client as a necessary evil to the practice. If you

have that kind of attitude, you are in the wrong business."

Turai has extended the notion of managing client expectations about process to communications. He believes that because most clients do not have a way to judge a law yer's technical skills they often judge their lawyer on how well they feel they were treated. These percep tions are based on factors like the speed with which a lawyer returns

messages and how many times they are charged for phone calls.

As a result, Turai's retainer agreements specifically refer to being charged for calls and the time frame in which they can expect them to be returned. He has found that this helps to dispel any resent

ment clients may have due to mis understanding the process.

In a similar vein, Robinson has hired a public relations profession al to meet with new clients before they actually retain his law firm. Robinson does not offer free consul tations to new clients and wants them to understand what they will get for their money. He also notes

62 ABA JOURNAL / NOVEMBER 1997 ABAJAOM GERCZYNSKI

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that many clients call him in a time of crisis, and his public relations staff member can help them deter

mine whether they really need the services of a lawyer.

Clients appreciate this type of upfront honesty from their lawyers, says Robert Heinrich, general coun sel for Fender Musical Instruments in Scottsdale, Ariz. He says he of ten has found his outside counsel unwilling to confront him about ap proaching a project in a different way than he has suggested to them.

"Nothing angers me more than getting the Tes, yes' on the phone and then having my outside counsel spend 15 hours seeing whether it can be done that way," he says. "I would rather have them say to me upfront that my way is not the best way, instead of doing research be cause they suspected I was wrong at the outset and then billing me for it."

Arthur Spalding of Rhoades, McKee, Boer, Goodrich & Titta in Grand Rapids, Mich., agrees that lawyers must learn to be direct to better control clients. "Clients need to know whether they cannot do something or cannot do something the way they want to do it," he says. "Burying your head in the sand will not do it. Lawyers need to be as sertive, to stand up to clients and give them the bad news or tell them

the real facts and the real law. But that assertiveness has to be tem pered with the objective of trying to solve clients' problems."

Susman believes that the ulti mate way to manage client expecta tions is through alternative billing arrangements. Hourly billing, he says, is responsible for skewing cli ent expectations.

"When a client hires lawyers on an hourly basis?and the fee ar rangement is not connected to the result?and the lawyers run up a huge bill, the client thinks, 'My God, I am spending thousands in attorney fees, I must have a pretty good case,'

" he says. "Then on the

eve of trial the lawyer goes to the client and says, This case is a dog, let's settle it.'

"The client then says, Why did you spend three years billing me thousands of dollars and then wait until now to tell me that our case is no good?'

"

Although fixed fees are Sus man's preferred way to manage client expectations, these billing arrangements also can create dan gerous expectations for both lawyer and client, he says. The client typi cally expects the lawyer to do ev erything possible to exhaust the fee, while the lawyer has motiva tion to do only what is truly neces sary to maximize profits.

Sanchez of Chicago's Sanchez & Daniels believes that the only way for a lawyer to satisfy these clashing expectations is to be able to show the client that quality has not been sacrificed.

When his firm bid on Chrysler Corp.'s product liability work for parts of the company's Midwest re gion, Sanchez studied how the car manufacturer had fared under its previous counsel in Illinois and In diana for the work he eventually won. The statistical information Sanchez gathered showed that the representation his firm is provid ing through a fixed-fee arrange

ment for Chrysler is on a par with that which the company received by paying for legal fees on an hourly basis.

Fender's Heinrich says he is hesitant to engage outside counsel on a fixed-fee basis unless he has an established relationship with the lawyer because of concerns he has about the level and quality of the staffing.

Susman understands concerns such as Heinrich's and notes that in the absence of an established re lationship between lawyer and cli ent, the lawyer must be prepared either to allow the client to super vise the work or to provide the cli ent with a detailed plan of action. It is a process he likens to hiring a contractor.

MANUEL SANCHEZ Clients on fixed fees want quality efforts. If you hire a builder to build a house for a fixed fee, sev eral things must happen," he says. "The builder would have to be a dear friend whom you trust dearly, or you would have to have a set of very, very detailed plans showing where every nail is going to be so you are as sured that no shortcuts have been taken. Or you have to be there every day watching over the builder."

When the fixed-fee work is high-profile?such as Sus

man's arrangement with Phillip Morris?the pressure accompanying the publicity may cause a lawyer to lose sight of the need to manage client expectations. For that reason, Susman underscores

the need for a lawyer to en sure that clients' expecta tions are under control from the beginning.

Otherwise, the fall will be very public indeed.

64 ABA JOURNAL / NOVEMBER 1997 abaj/robert davis

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