Managing Client Expectations
By: Howard B. Weber, Esq.
Several years ago, I purchased real property in a foreign country. What I didn’t realize until I was into the process, was that I had now become…a client! There I was, dependent upon my attorney, to guide me through a process which, pardon the pun, was foreign to me.
I had expectations as a client, based upon my knowledge of US real property transactions…almost none of which were applicable in my new situation. And so, like most clients, I was dependent upon my attorney to lead the way. My expectations were totally unrealistic, and I would not find this out until I tried to assert my understanding, my experience of what the process should be. Most importantly, I learned from the experience that in order to meet client expectations, you must take into account several important things.
First, you need to give your clients an overview of the process–and perhaps most important in our line of work–what the costs will be and what time frame to expect. Clients must know that a case that doesn’t settle will most likely take a few years to come to trial, and, in New York, that could be five or six years. The client needs to understand that they may have to spend thousands of dollars taking depositions of witnesses. They need to know the scope of required court costs–in New York Supreme Court, almost every contact with the Court involves a fee, from filing a Request for Judicial Intervention (RJI) for $95.00 to even the filing of a Stipulation Discontinuing Action for $35.
Next, clients should be kept in the loop from day one. They need to know the ‘next step’-both what it is and when it will be. They also need to be in contact with you even when nothing is happening, to let them know why time is passing with nothing seemingly getting done. Will they find it frustrating? Absolutely. But that is not necessarily bad since frustration with timeframes, expenses, etc . can all be extra motivations to settle.
Third, clients need to know at the onset that the possibility exists-especially with commercial claims–that at the end of the day, you may win and obtain a judgment, but that judgment may never be collectable. Business defendants close up, corporations dissolve, and every defendant has the safety net of bankruptcy to thwart your success. The client needs to know this and in fact, it may well explain why at some point you are strongly pushing him towards a settlement.
Next, clients need to be told at the onset what defenses may be available to the Defendant. The goods were defective, the goods were non-conforming, the goods were delivered late, and so on. Even duress and fraud may be asserted against your client, let alone jurisdictional defenses and statute of limitation defenses. The client needs to know this.
So after beating your client over the head with all this bad news, how do you proceed to represent him effectively? By being a hero, of course. Use summary judgments to avoid trial. Use Notices to Admit to flush out defenses. Clients need to balance their need for being paid every penny owed as quickly as possible, with the reality that it might make more sense to take a payout over time or a much reduced lump sum settlement, than to fight the good fight and recover nothing. As for us attorneys working on a contingency basis, pyrrhic victories are not something we are at all interested in.
Let’s take a look at why clients can actually benefit by entering into a Stipulation of Settlement. First, they no longer have to prove their case. That means not spending more fees, not wasting more time waiting, not having to testify under oath in a courtroom. Instead, our Stipulations provide judgment for the full amount demanded in the Complaint should defendant default. Additionally, the worst case scenario with a Stipulation is that you will actually get paid the settlement amount. The best case scenario is a default, followed by a full judgment as demanded in the complaint, which may actually be easier to enforce if we now know where the defendants’ bank from the previous checks used to pay the settlement. A discussion of Stipulations of settlement should also be made early on in the attorney-client relationship so the client has realistic expectations of what might be involved.
Clients must be made ready for settlement offers. After discussing the above information candidly with the client, you should have more cooperation and fewer surprises if and when settlement offers are being made. The ‘selling’ of a settlement to a client is much easier if the expectations are more realistic at the onset.
An educated consumer IS our best client. Once I knew what to expect from my own foreign attorney, I felt much more confident and comfortable with what was to follow. We all want that for our own clients and so I urge you take them through the process early on so that as things progress, they can sense if and when the time is right to resolve the case…which should hopefully coincide with your own attorney expectations.
©2015 by Howard B. Weber