Litigators, Small Law Firms

Beyond Biglaw: Trust Is All We Have

Clients are not the only audience whose trust litigators must win, as columnist Gaston Kroub explains.

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There are certain reminders that always benefit the lawyer who hears them. Reminders about the importance of maintaining a client’s trust qualify. I say “maintaining,” because it is highly unlikely that you will ever convince a client to engage you unless you earn their trust at some level. For purposes of this discussion, we can define a client as anyone who entrusts you with legal work, and expects your work to lead to some favorable outcome. A slightly different way to think about it is that the client is in effect the “audience,” and will be watching your performance intently — with an expectation that you will please.

It does not matter if you are a solo practitioner representing a neighbor in a business dispute, or an associate at a large law firm handling a project for a partner. In the latter case, it is worthwhile to consider the fact that you are often in effect serving two “audiences” or clients — the actual firm client and the partner who handed you the assignment. Successful lawyers do their best to satisfy the audience every time, while remembering that the easiest way to lose an audience is to demonstrate a lack of credibility.

One of the interesting things about being a litigator is that you also have to satisfy additional audiences, on top of colleagues and traditional firm clients, in the course of your work. At minimum, in addition to the client and your colleagues, litigators are also trained to perform before judges and juries. Satisfying these disparate audiences is a challenge, but also part of what makes litigation such a rewarding endeavor. At the heart of success as a litigator is the ability to maintain the trust of each of the audiences or clients being served.

The centrality of this concept to a litigator’s success should not be dismissed offhand. The proof? Smart clients will take every opportunity to remind their chosen litigators of how important it is that they maintain the client’s trust over the entire duration of their engagement. Everyone who has represented clients in litigation knows that clients can be more forgiving of a poor result if they trust that the firm they hired put forward a good effort — and also avoided trust-destroying behaviors throughout the process. Conversely, that very same client would be much more likely to take their business elsewhere, even when the litigation result was a successful one, if the attorney or firm engaged in some form of trust-destroying behavior. Billing “irregularities” are an easy example of such a client-relationship killing behavior.

Clients are not the only audiences that explicitly demand that litigators maintain their trust throughout the litigation process. Courts provide appropriate reminders of their own through the imposition of rules governing an advocate’s conduct. And judges are always quick to maintain the integrity of proceedings before them, through policing of attorney behavior even outside the courtroom itself: deposition behavior by counsel is an area that is often policed by judges (and likely to provide ATL fodder to boot). Lifexkewise, firms endeavor to train their lawyers in the written and unwritten “cultural” rules that define the types of behavior the firm will tolerate from their attorneys. You can be sure that behaviors that detract from, rather than enhance, a lawyer’s credibility are those most likely to be found unwelcome.

Our most recent reminder of this important truism came from an interesting source. Because our firm sometimes acts on behalf of plaintiffs in patent matters, we are on occasion asked by potential or existing clients to help secure litigation financing for a particular matter. Accordingly, we have developed relationships with some of the leading litigation finance firms, despite the general reluctance to invest in patent litigation in today’s highly pro-defendant environment. At a recent meeting with one of those funders, we were discussing the criteria the funder uses to determine which cases to back. Unsurprisingly, in addition to the merits of the claim, a big factor raised was the quality of the counsel involved. If anything, the funder (as do all the audiences a litigator interacts with) presumes that the firms they will work with are competent and will work hard. In the funder’s (and likely any client’s) view, what differentiates firms and lawyers that are backed once and then discarded, and the firms that are deemed worthy of a deeper, long-lasting relationship, is a simple metric. The former do a poor job of maintaining trust, while the latter consistently build and deepen it.

Because law is a service profession, and one that has developed a reputation as being filled with unscrupulous and untrustworthy characters, lawyers who want to maintain a client’s trust need to accept that it requires constant effort. Clients of all stripes are constantly, and rightly, looking to see whether their attorneys are prioritizing their needs over the attorney’s personal ones. It is a tough standard, but considering the horrible potential ramifications to a client when a lawyer demonstrates unethical or untrustworthy behavior, a necessary one.

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As with any relationship of value, trust needs to be re-earned constantly, through demonstration of trust-building behaviors. Put another way, it is a mistake to assume that just because the relationship duration is increasing that the level of trust between the participants in that relationship is also increasing. Very often the opposite is true. A worthy exercise for every lawyer to perform on occasion? Think of all your clients and colleagues, and ask: What can I do today to demonstrate that I am worthy of their trust? Follow through, and there is a good chance your client relationships will be stronger, and more fulfilling.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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