Small Law Firms

5 Easy Steps To Fix Your Problems With Clients & Opposing Counsel

These suggestions could be akin to the Ten Commandments for handling difficult clients and opposing counsel.

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I was talking with my law school bestie (a male dinosaur) about the practice of law. He never applied for a job as a lawyer; he always wanted to be his own boss, and he’s practiced for 40-plus years in small firms, always as the boss. We talked about how the practice of law can be great fun and intellectually stimulating except for one obstacle: clients. Law practice would be so much easier if there were no clients. Of course, if there were no clients, there would be no business and all the various kinds of collateral damage and loss that would flow from that. It would also be easier, we agreed, if there were no jerk lawyers on the other side.

So, when I came across this article, I thought this is something we need to think about, since so many of the complaints that various state bars discipline lawyers for arise out of client communication issues or the lack thereof, mainly with clients, but it’s not unheard of that lawyers file complaints against other lawyers.

We’re all smart people, right? At least we think we are, and in most cases I think that’s true. However, I’m sure we all wonder, from time to time, how some particular person ever passed the bar. Admit it, you’ve had those thoughts, and once in practice, the jerk quotient of opposing counsel can be rather high.

In any event, perhaps given Passover and Easter overlapping this year, could these suggestions be akin to the Ten Commandments for handling difficult clients and opposing counsel? You can read them all, but space limitations preclude talking about all of them. So, here are my top five, based on my dinosaur years and experience:

1) Smart people (aka lawyers) don’t “feed the monster,” or more politely, “manage expectations.” Tell the clients the truth, underpromise, and overdeliver. I’m not aware of any client complaining that she got a better result than expected.

2) Set limits. We can all hear client whines and colleagues’ complaints only for so long, and then it’s time to either STFU or take some action. One of the best ways to reduce client whining is to show the cost to the client for all his whining. Perhaps when the client sees how much he’s billed for whining to his lawyer, the conversations will become more productive.

That’s not to say that you should blow off the client when the client has a legitimate beef about some aspect of the representation, the litigation, the transaction, or just the advice.  Everyone knows in this hyper-regulated environment, there are traps for the unwary at every corner. However, by setting limits, the client then knows what’s important and what’s not.

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3) Don’t focus on problems; focus on solutions. That is the mediator’s mantra. I tell clients and parties in mediation that litigation is always retrospective. You’re dwelling, perseverating, fretting about stuff that happened in the past. The past is exactly that, the past, and the goal is to get past the past and move forward.

So, how to solve the problem? Tell the client to consider options, to cool his jets while you figure out the best way to extricate him from the pickle he’s in. Remember, we don’t make the facts, we just try to make the best of the ones we’re handed.

I read somewhere that a case involving the Elvis Presley estate was dragging on interminably. The estate had a conference room full of lawyers representing it. When Priscilla Presley walked into the room, she asked who was paying for all of them. After hemming and hawing, the lawyers said, “You are.” She instructed them to settle the case. Right instruction.

4) “They don’t die in the fight.” In other words, choose your battles. Live to fight another day. Don’t get so emotionally involved that you lose perspective. We’re supposed to be the detached ones so that we can offer advice and strategy that is unencumbered by any emotional reactions, and that applies not just to clients, but to opposing counsel.

Here in SoCal, the legal community is so huge that lawyers think they can treat other lawyers in rotten ways with no consequences. That may have been true to some extent 20 years ago before the advent of listservs (however, even then, lawyers shared information about other lawyers) but nowadays, especially in practice areas where you see the same lawyers over and over again, that is just not the case.

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And if there’s any doubt about the importance of walking away from the fight, this is Exhibit A for a primer on “how to get sanctioned by really trying.” I am not making this one up. Does everyone have $50K just lying around?  I thought not. It’s also a cautionary tale about being nice, and not vitriolic, in emails. Don’t be so quick to hit “send.”

5) Stifle that internal critic that lurks constantly on your shoulder, in your brain, or wherever your personal internal critic likes to hunker down. We all have one and it’s merciless, pointing out all the “shoulda, woulda, coulda” that we all ruminate about. “I should have asked that killer question in deposition, but I didn’t. I should have called that witness, but I knew the court would say it was cumulative. I didn’t include that argument in the appellant’s opening brief, because I thought it was a loser.” And so on.

We all have enough external critics (the court, opposing counsel, colleagues, family, and the like) that we need to ditch the internal one, and that is very hard to do.

I always tell mediating parties that they don’t know what a jury is going to do (nor do their lawyers, nor me).  There’s enough doubt in what we do (reasonable or otherwise) that we don’t need to let that internal critic constantly second guess us.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40+ years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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