Limited Representation: Why do it?

There has been a recent shift in thinking in the minds of some lawyers that "limited representation" is a new way to be helpful to clients.  In fact, it has been around for a long, long time in the form of "counsellor-at-law."  While many lawyers like the tradition of the lawyer representing ALL interests for a client's ENTIRE matter, some clients want a different arrangement.

With so many possibilities, there simply cannot be a one-size-fits-all way to represent a client's interest.  Lawyers need to be accommodating and flexible in their representation and offer flat-fee billing.     

A survey conducted in 1998 by the Boston Bar Association indicated that in over two thirds

of cases, one or both of the litigants are pro se.  This means that clients are going it alone.  Why?  And, what might be the up-shot? 

 

In many cases, self-represented litigants don't finish their family law action due to lack of understanding of the process.  They give up, feeling hopeless.  Most litigants do not qualify for legal aid, or live in areas where the legal aid resources are insufficient to meet their needs.  These litigants are forced to go pro se because they cannot come up with a huge retainer.  They feel as though they are forced into a financially-bound corner.  Others find that while they can afford to pay for some legal assistance, the cost of full service representation is simply prohibitive.  Then, there are some who desire to retain more control over their cases, and turn to attorneys to coach them, or assist with their paperwork.  These litigants retain primary control over their legal matters and appear in court by themselves. 

Comments?

Is approaching a multi-faceted case like a "pick-and-choose menu" a smart way to have a client-lawyer relationship?

Connecting to the Client

Recently, I have been working with a clients whose personal stories are emotionally traumatic.  Both from the perspective of any compassionate human but also, more existentially, to the person who's telling it.  Details emerge about trauma suffered at the hands of a sexually-abusing spouse, of a prison guard, of a father deserting his children.  Really ugly events left to stew in the minds of those victimized.

My clients frequently say, "I'm sorry to unload this on you."  My response, "Don't be."  And, I mean it.  If a lawyer cannot do the hard work of being both an attorney and counsellor at law, then she should get out of the business.  Clients, while interested in sage legal advice, want to be heard emotionally.

Clients need to be able to trust their chosen advocate with the ugliness of their pasts. 

The only way for this trust to authentically germinate demands the emotional risk a lawyer must take to be "present" with the client.  This risk-taking need to happen before the client arrives for the initial consultation.  Extra time needs to be put aside in the estimated "hour" to accommodate not only the "get-to-know-you" small talk but also the "you-may-unload-that-on-me" discussion.

Be advised:  A generous and compassionate heart will result in more time, better trust, and a more meaningful lawyer-client relationship.  Clients deserve emotional connections to their lawyers.

Comments?

 Is it important for you to have emotional chemistry with your attorney?

Ask the Client

Most people list "public speaking" as one of their greater fears.  Depending on how the question gets asked, "speaking in front of a group" outranks "death."  The image that most have of lawyers is that they not only like speaking in front of groups but also are good at it.  While it has been my personal observation that most lawyers fear death well above any fear of talking in front of others, many lawyers fail to remember that people -- in general -- hate being in the spotlight.

Last week, I found myself sitting in my office with a client and going over his testimony.  I went so far as to set up a video camera and record his words and mannerisms in order to have some friends comment as to his credibility.  (Full disclosure:  He has given me permission to broadcast.)  

This seemed like good trial preparation:  Get client to tell his story (which lawyer already thinks is credible); record it; get feedback from unbiased third parties; then, based on the reviews, decide if client should take the stand in his own defense.

I spent several hours with my client.  Though, it was not until then later portion of our time together that I asked him if he wanted to get up in front of a jury of his peers and both tell his side but also be subject to cross-examination.  His response -- likely driven by my high-tech video staging and presupposition of his testimony --  was "If you think that it makes sense for me to, I will."

It seems to me that like most people, he'd rather not speak in front of a group; and, certainly not a small group of strangers who have been charged with judging him.  And though he is deferring to my professional opinion as to what he ought to do, shouldn't my professional opinion include what is best for my client?

Comments?

 When does the client's interest begin and end?  

All Work + No Play = Tired Lawyer

One of the most common complains of those who live with lawyers is the constant focus on work.  Whether the lawyer is "running ideas" by a spouse or some friends or the children are asking about "the one that got in trouble with the police," the lawyer can have little time to not be "lawyering."  In some ways, this is good:  Cherished family and trusted friends in the lawyer's "circle" are interested in how the lawyer spends her work time and the lawyer has a nearly constant stream of feedback.  In many, many ways though, this is not good:  Cherished family and trusted friends have now assumed a role of "support staff" and the lawyer seems never to have "down time."

When I was working as an investigator of child abuse and neglect for the Commonwealth, I brought every day home to my husband and relived it in excruciating detail.  Sometimes, it took five or six hours of "briefing" to get my eight hour day processed.  Thankfully, that lasted for only the first two and a half years of our marriage.  It's a wonder that Rob endured such a daily rant.  Having a master's degree in therapy probably helped him through.      

When I began law school in 2002, I was already a wife and a mother.  I had had other "life" experiences and titles to define me apart from "future attorney."  I had other roles to fill outside of the classroom.  This dichotomy served as a training ground for life after passing the bar. 


Never do I see myself as exclusively "lawyer."  For that matter, people who I meet in town -- if they even ask -- are surprised to learn of my profession.    

The ability to keep separate these two spheres is a benefit to not only my cherished family and trusted friends but also my clients.  The clients get more out of me because I am always enthusiastic about spending my lawyer time on them. 

Because I can compartmentalize -- and have done so since Day One of law school -- every one gets what each deserves, including me:  Focused attention, "down time," respectively.      

Compassionate Care

While listening to NPR yesterday, I heard a report about compassionate care in the medical setting.  Apparently, people believe that compassion -- offered by medical professionals -- can make a difference as to whether a person lives or dies.  Patients think that 81% of the time, "good communication" and "emotional support" make a difference; doctors come in at a high 71%.

See the blog at:  http://commonhealth.wbur.org/2010/11/compassionate-care-the-difference-between-life-and-death. This got me to think, naturally, about clients and lawyers.

While it is a rare day that a lawyer makes a "life or death" decision for a client, many clients feel as though their legal issues are life-determinative.  And guess what?  These decisions make a HUGE difference to the client, as well they should.

Every client must be made to feel that there is "good communication" at the very least.  Exceptionally good communication is even better.  This means calling the client back, right away.  This means keeping the client up to date as to the happenings of the case.  This means listening to the client's concerns and objectives, not just in the initial client interview but throughout the entire case, even after the case is over when the client has "a few more questions."

Every client must be made to feel "emotionally supported."  This means providing legal guidance through the lens of the client's perspective.  It is the client's case, not the lawyer's.  This means taking a holistic approach to the client; not just learning about the client's legal issue, but learning about the client -- as a person.

If doctors and patients can agree that "good communication" and "emotional support" can make a difference in "life and death," then certainly a these two simple components of basic human relations can make their way into the lawyer's office.    

Comments?

What do you think?  Could having an embracing lawyer change the outcome in a legal setting?

Civility in Pricing

Over the last little while I've been thinking about how lawyers earn their pay.  Most do so by billing by the hour.  Not such a bad deal for the lawyer, especially when the amount of time to be spent on the case is unknown.  On the client end though, not such a good deal.

Where else is a professional -- providing professional services -- able to look a client in the face and say "I charge a whole lot an hour and I haven't any idea what this is going to cost you in the end."?  I wouldn't put up with that from my dentist or my mechanic.  These professionals say upfront:  "Your crown will cost $1,200.00."  (No limit on time.)  "Your timing belt and water pump replacement will be $1,000.00."  (Quoted price provided before the work begins.)

And yet, so very many lawyers continue to charge in one-tenth billable hours.  I suppose this is based in the "tradition of the law."  Rooted in the notion of:  "We've always done it this way."  Where's the progress in that mentality?  How about being open and honest with cost?

I have a client now who was originally given a flat-fee cost for the proposed legal service.  The client was unable to come up with that amount of money.  The "compromise" was to switch over to the outdated -- and unknown -- billable hour situation.  By the conclusion of the case, the client may end up being "billed" roughly the same amount as quoted -- upfront and in the open -- for the flat fee.

Where does this leave the client?  I imagine that the client will feel manipulated into paying "additional retainer" when the "initial retainer" runs out.  I imagine that the client, when given the initial retainer amount (half that of the flat fee), conceptualized the case costing one half the flat fee -- despite the wording in the representation agreement.  This doesn't feel right to me, but that was what the client wanted.

Starting with my very next client, I will no longer be "compromising" on the representation agreement.  I will openly price the case based on the client's needs and goal.  I will be more like the dentist and the massage therapist and the mechanic.  Of course, things can change:  An open-pricing of, let's say "$X for your divorce which includes a, b, c, and d." could morph into "$X plus $Y because we have learned since the beginning of the case that you now want e and f."  This is like the dentist who finds the need for a root canal after inspection of the tooth to be crowned.  Or, the converse could happen.  The client could hear "It is no longer $X.  It is $X minus $Z because you do not need d."  This is akin to the mechanic who finds your vehicle does not need a new water pump, just the timing belt." 

Comments?

What do you think?  Would knowing the cost upfront make a difference to you?  What experiences have you had with lawyers and their billing?  Ready for a change?

Incarceration: Experience Matters

During my time with the Committee for Public Counsel Services, I had the opportunity to go into both country jails and state prisons.  I do not use the word "opportunity" in any other way than then what exactly that word denotes.  I has fortunate to be able to get past the wire and the wall and double-locking doors to be on the "inside" -- if only for a short visit with a client.  My clients, by and large, had been incarcerated before and were unable to make bail prior to trial.  The notion that people are "held awaiting trial" is something of a misnomer:  Most cannot make the excessive bail; a few are held due to a determination of dangerousness.  To the jails and prisons I would go -- and, leave again through the double-locked doors and the wall and the wire -- back to my car and back to the office, or home. 

Each and every time I would depart from these places, I would feel eternally thankful that I was leaving.  Coupled with that, I felt deeply saddened that my client was there.

Back in court, the prosecutors would argue for jail time instead of supervised probation with conditions mandated to address the "why" of this person's appearance in the courtroom.  As defense counsel, I would -- with my client's permission -- endorse the latter approach to "punishment."

But I had something that I do not think the prosecutor or the judge had:  Experience.  I had been to the jails and prisons.  My advocacy was not driven singularly by the goal of "keep my client on the streets" but more so by the goal of "keep my client out of there."  The prosecutor in throwing about "nine months" instead of "six months" had truly no idea of the difference of three months.  In jail.  In prison.  Three months matters.  Three minutes matter.  The judge, likely having been a former prosecutor, also may have little appreciation for "doing time."

I do not suggest the closing of jails and prisons.  I do not suggest that those who have been cruel and violent to others be allowed to roam among us.  What I would suggest is that each and every judge, prosecutor, and defense attorney go to a jail and in a prison.

See how those who are incarcerated live, counting down the months, checking off the days, watching the clock, hoping for a visit.  Without the appreciation for what incarceration means, it seems unfair to advocate, defend, or meter out the punishment to that end.  

Comments?

What do you think?  Would having a real appreciation for "life on the inside" make a change in the way defendants are handled and processed through the system?  Comment below.