What’s a good way for a lawyer to address the client who complains that she is being too nice to the opposing counsel? Is there any way to explain the process of litigation before possible disappointments develop? Our faculty participant, Tony Paganelli, Paganelli Law Group, Indianapolis, discusses these and other related issues that are growing more common in his CLE presentation: “Trying Cases in a World of Media Overload.” He has agreed to share with Law Tips readers a sampling of his insights from over 20 years as a trial lawyer:
More often than not, lawyering is the art of managing expectations-those of your clients and those of the courts. Because much of what we do as lawyers goes on behind the scenes, our clients only real glimpses into what we do every day comes from meetings, conference calls, depositions, and increasingly infrequent court appearances where clients actually attend in person. In our age of 24/7 television and always-on internet, the popular media replaces meaningful interaction between attorney and client to form the world’s perception of what we do and how we do it. This is not a good thing. Almost universally, the public’s perception of dispute resolution, as presented by movies, television shows, and the media, is one of a system that is much faster, flashier, and more simplistic than what really goes on in a lawyer’s day-to-day practice of law. This makes lawyers’ lives much more difficult.
For example, depending on the type of case and the venue, lawsuits can take from one to three years to make their way through the court system. During this period, months often go by with little or no activity. Under normal circumstances, clients would have a difficult time understanding this “hurry up and wait” system of project management, but when they see cases proceeding from start to finish in the course of a two-hour movie, or even a sixty-minute television show (with commercials!), they sometimes blame their lawyers for mismanagement, procrastination, laziness, or all of the above.
Similarly, the trials the public sees on the news and in movies apparently involve parties with infinite litigation budgets, especially when it comes to expert witnesses and courtroom presentation tools. After the O.J. Simpson trial, which much of America watched on television in real-time, people came to expect reconstruction videos, computer animation, and endless parades of forensic expert witnesses. What the public does not see are the bills that come afterward. Estimates place the fees incurred by Mr. Simpson in his case almost 20 years ago at well over $10 million.
The public also expects cases to resolve in dramatic courtroom clashes as lawsuits move quickly toward a speedy trial. This is to be expected-cross examination makes for much more dramatic television than a 10-hour long mediation, even though well over 90 percent of lawsuits are resolved by settlement or pre-trial motion, rather than trial. News accounts only cover settlements to the extent that they are announced in press releases or news conferences that are often ignored. The riveting news coverage is in the form of courtroom testimony, and even that is highly edited to focus only on the 30 seconds of dramatic sound-bite each day in ten hours of otherwise undramatic testimony.
The result for real-world litigants is an anticlimax: parties sometimes feel they have been denied their “day in court” or, worse, that their lawyer has “sold them out” by encouraging them to take a quick settlement instead of putting in the work needed to try a case. Similarly, clients accustomed to the “lawyer as gladiator” image presented in movies and television shows are unimpressed by (and sometimes suspicious of) lawyers they perceive as being too friendly with their opposing counsel, and by depositions or cross-examinations that seem tedious, weak, and emotionless.
The Solutions: Managing Your Clients’ Expectations
As in many things, the magic bullet to bridge the expectations gap between fiction and reality is communication. Lawyers should talk with their clients early and often about what should be expected in the course of a lawsuit. The three most important areas in which to set and manage client expectations are time, money, and resolution.
First, at the outset of a lawsuit lawyers should help clients understand how cases make their way through the courts to resolution, and that lawsuits are resolved by settlements an overwhelming majority of the time. At the same time, lawyers should explain that lawsuits typically proceed in fits and starts, punctuated by periods of intense activity followed by lulls that can last months. One effective tool to help lawyers communicate this aspect of litigation to clients, and also to help lawyers manage their cases, is the simple timeline. A printed timeline, provided to a client at the beginning of a case, can be a powerful tool for managing clients’ expectations and conditioning them to the fact that lawsuits are marathons, not sprints. The timeline can also serve as an agenda for periodic status update meetings and calls.
Second, another part of a lawyer’s case management job is to make sure his or her clients understand that everything in a lawsuit costs money. From expert witnesses to jury consultants to accident reconstructionists, the people who add the “sizzle” to a lawyer’s trial presentation are expensive. Any budget that a lawyer prepares for a client must account for these costs and explain to the client that they are not included in the lawyer’s fee, if that is the case. Again, if you can project expenses onto the timeline, your client can see not just how much money the case will cost, but also when (and why) fees and costs will be incurred.
Finally, clients must understand that lawyers are not gladiators. As all good lawyers know, yelling and bullying are seldom the most effective tools for advocacy. However, this may be the most difficult misperception to overcome but the concept of “you’ll be hearing from my lawyer!” is so deeply ingrained into our collective psyche. People expect, and pay, their lawyers to fight their battles for them, so they want to see at least a little bit of hand-to-hand combat on their behalf.
Make no mistake, there is a time and a place for firm, aggressive conduct. The reluctant, dishonest witness must be dealt with and the foot-dragging opposing counsel must be held to task. A lawyer arguing his or her client’s case in a courtroom should not merely read notes from a legal pad, but should plead the client’s case with appropriate passion and zeal. But there is no place in litigation for belligerence, bullying, or needless antagonism. Indeed, judges are becoming increasingly unforgiving of such conduct, insisting on civility from all counsel and litigants.
So how does the lawyer explain himself to the client who complains that he is being too nice to the opposing counsel? How does she respond when the client asks why she didn’t get tougher in the deposition? Again, the answer comes from communicating with your client in advance and setting reasonable client expectations. For example, if you worry that your client will perceive you as weak if you agree to routine continuances and extensions of deadlines, during your first discussion of the lawsuit timeline you can explain that it is typical for both sides (and the court) to need more time to respond to a request or a motion, and that events are often rescheduled through no sinister motive, but rather just because the process of a lawsuit is dynamic. Evidence gets discovered, motions get filed, and other things happen that can’t be predicted in advance. Explain that you might need a continuance or extension yourself at some point, and objecting to the other side’s request may haunt you later when you need the same courtesy.
Moreover, you can explain to your client that objecting to routine and reasonable requests to adjust the timeline will be counterproductive because they will likely be granted over your objection, and you will look petty and unreasonable to the judge for making the objection.
By the same token, explaining to your client in advance, for example, that depositions are fact-finding interviews, and not opportunities to embarrass or belittle opposing witnesses, might help your client understand a seemingly meek questioning technique. A client who knows in advance that the goal of a deposition is to put a witness at ease and encourage him to talk will be satisfied with something less than an inquisition.
Are your client communication methods similar to these? Are you now thinking of a few improvements? Hopefully, this review had a tip or two to help you in the future. I appreciate Tony Paganelli sharing his experience on managing clients’ expectations. And, there’s more! His timely advice continues next week here on Law Tips when he steps into “Adapting to the Audience’s Expectations.” Come back to see what he has to say about how to create a polished and sophisticated impression without breaking the bank or distracting from the message.
Meanwhile, there are opportunities for you to hear Mr. Paganelli’s presentation from the Federal Civil Practice seminar either as a Video Replay seminar at various locations around the state or as an On Demand seminar, available anywhere, anytime.
About our Law Tips faculty participant:
Tony Paganelli is the principal of the Paganelli Law Group, Indianapolis. Before leaving to found his own law firm in 2013, Tony was a litigation partner for several years with one of the largest law firms in the United States. Tony is an experienced trial lawyer with nearly 20 years of experience representing people and companies of all sizes in courtrooms across the United States. He also advises businesses on a wide range of issues, including employee relations, contracts and transactions, regulatory compliance, and intellectual property issues.
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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