In last week’s column, I discussed a scene from HBO’s The Night Of in which one of the lawyers on the show negotiates his fee with an unsophisticated client of limited means. In my view it was a difficult scene to watch, but also instructive, as it showed how important it is for a lawyer to maintain their sense of self-worth at all times — especially when dealing with existing or prospective clients. But that is not the only lesson we as lawyers can learn from the show.
As I alluded to last week, one of the things that makes the show instructive for lawyers is the way it portrays the legal system as seen by those outside it. At the same time, the show also provides glimpses into the interactions between regulars in the system, and how those interactions can be interpreted by others as unfair. Accordingly, it is worth considering how clients view us as lawyers, and in particular when they watch us interact with other lawyers.
In my line of work, intellectual property litigation, there are a couple of fairly typical scenarios where I find myself both spending time hosting a client while also engaging with opposing counsel. In each situation, there are various considerations that I try to keep in mind, and seeing how similar interactions and analogous situations are depicted on The Night Of has helped me focus on how to improve my future performance as both an advocate and colleague.
My general sense is that clients are often uncomfortable watching, or at least wary of, their lawyer interacting with another lawyer — especially in an adversarial setting, but perhaps more so when the parties are engaged in settlement discussions. As an initial matter, it is human nature for the client in such a situation to fear being sold out by their lawyer, and as a result clients will watch their lawyers very carefully for any signs justifying that fear. Mediation, for example, demands a delicate balance from a lawyer, who has to both zealously guard the client’s interest while making sure the mediation process itself is respected and given a full chance to succeed.
During mediation, which I analogize to The Night Of’s plea bargain scenes, there is a good chance that you will be spending a lot of down time with your client. While that time can help cement or strengthen the client relationship, mediation can also stress that relationship as well. In particular, clients can exhibit some level of concern that their own lawyers are pushing to wrap the case up, especially if the deal reached at mediation is not an ideal one. Considering that a successful mediation is one where a deal is reached that leaves both sides at least a little dissatisfied, that concern is not misplaced. As a result, I have found that it is important – particularly when interacting with the mediator and opposing counsel – to forcefully communicate the strength of the client’s position and your personal belief in the merits of the case. Doing so early on in a mediation can help dispel any fears the client may have that you will be pushing them to take a deal so you can collect your fees without further effort.
Another situation where the client will be watching closely to see how you interact with fellow lawyers is at a hearing or trial. Depending on the nature of the client and the dispute, it may be fine and even advisable to display some camaraderie — even with opposing counsel. The client may appreciate it, and take as a sign of your experience and competence your ability to maintain your courtesies to others in the heat of battle. Other clients, however, may not want to see you being chummy with the jerk who gave them fits at their deposition, or who is now reaching into their (company’s) pocket during a heated presentation before the judge or jury.
As with anything, it is important to understand your client’s outlook and calibrate your behavior accordingly — while not forgetting your professional responsibility to display civility to everyone in the judicial system, irrespective of how militant your client is.
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Finally, another common situation where the client will be watching your interactions with other lawyers is at deposition. In many ways, the same considerations that would apply during a court appearance of trial are equally applicable to the deposition setting. At the same time, depositions provide a prime opportunity for you to show the client how much you care about protecting their interests, even if the actual steps you can take during deposition to do so are limited. Since deposition is also possibly the longest time the client will spend with opposing counsel, it is important that the client see you handling opposing counsel effectively. Clients do not want to pay for petty disputes between lawyers, and no matter the level of civility or hostility directed your way by opposing counsel, it is important to demonstrate to the client that you are able to manage what is sent your way — while also being able to keep things moving forward efficiently, and towards resolution of the matter on the merits in their favor, of course.
Ultimately, because I am not a criminal lawyer, watching The Night Of has allowed me to look at an unfamiliar legal process with a similar set of eyes as our clients may use when viewing us. While we may enjoy or learn from watching a well-made television show, the more important benefit for our professional careers is remembering that we are being watched ourselves by our clients. Those clients, like television viewers for a television channel, are the most important critics we need to please.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Earlier: Beyond Biglaw: Lessons From ‘The Night Of’ (Part 1)
Standard Of Review: The Night Before The Week Starts, Watch HBO Miniseries ‘The Night Of’
Standard Of Review: Evaluating The Attorneys Of ‘The Night Of’
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 [email protected] or follow him on Twitter: @gkroub.