Currently, my husband and I are ‘the clients’ in a lawsuit stemming from his work. We’re not alone. We are joined by several others even though it is not a class action. It’s related to pensions, municipal estoppel, due process, and a host of other issues.
I went to the initial meeting with everyone else. I tried not to ‘be a lawyer’. The lawyers are very talented and clearly experienced. They know what they are doing. Where they lost each and every one of us is clearly not understanding, nor attempting to understand, the value of the case to us versus what they want to charge for their time based upon a billable hour model. In addition, they were simply unable to communicate with each and every potential client.
To synopsize:
Susan: How much is this going to cost?
Lawyer: Well, if it goes to Federal Court, one year of that process could be anywhere from $60,000 – 80,000.
Susan: Is this based upon billable hours? You see, we’d really like to have a fixed fee because we can’t afford to have it be open-ended. Individually, each person’s claim is finite, calculable dollars so the value to each of us individually may not be there to support $80,000 in legal fees. We’re not interested in a moral victory.
Lawyer: Well, my rate is $400 per hour. I would send ‘Tom’ for the pre-trial negotiations. He charges less than I do per hour. Preliminary research could be done by our 3L intern at $100 per hour.
Susan: Have you considered value pricing?
Lawyer: Well, if I did then I’d err on the higher side to make sure I covered my time and costs. I have to pay overhead. (laugh).
Susan: So, you’d base any value pricing strategy on your billable hour calculation and then basically pad it in case you miscalculated your time?
Lawyer: Yes.
Susan: I’m not sure you understand value-pricing.
Lawyer: But why would you want to pay more if I don’t spend the time on the work? Why don’t you pay for the research which should run around $1200 dollars and I’ll throw in my review of the case for free. If I did your ‘value-pricing’ I’d probably charge $2,500 for the same thing.
This is about how the conversation went. The lawyer was so entrenched in the billable hour, not hearing that we needed caps based upon the value to us. In doing so, many of the group were ready to let the case go. Others felt confused as they’ve never been involved in a lawsuit before. They not only felt discouraged listening to the attorneys (the case is a winner but not the way it was presented) but felt like even if they win they were going to lose because the lawyers were not understanding the value to the clients to pursue the case.
The lawyer was selling her time based upon what she considered her worth and what she needed. The clients were willing to hire her based upon the value they placed on the case which was measurable and defined. There was a serious disconnect in communication and the lawyer made little to no effort to bridge the communication gap.
I’ve always liked the concept of value-pricing. But I didn’t have the time or inclination to educate her on why she may very well lose this case which is one which would have put a feather in her professional cap and ultimately lined her pockets.
I felt very frustrated because it made me realize how difficult lawyers can make it for clients to hire them.
Then she committed the ultimate faux pas. She and her partner started talking to each other in ‘legal jargon’ which is just about as rude and unwelcoming as when you are having a negotiation with two non-English speakers and they abruptly stop talking English, turn to each other to converse in their native tongue, and act as if you are simply not there or should not be privvy to this information. You are left confused, offended, and slightly suspicious when they eventually return to your conversation in English.
I had to intercede politely and say, ‘why don’t you explain to those who may not be familiar with the terms used what they mean and how they impact the strategy of the case.’ No embarrassment, just a surprised ‘oh’ and then they explained as if they were talking to children, not grown adults. And if I wasn’t there they would have remained totally unaware of how they came across to these potential clients who had no understanding of terms such as ‘municipal estoppel’, ‘due process’, federal court versus state court and so much more but were certainly not children. No client wants to feel stupid because they don’t know the ‘language’ so it is incumbent upon the lawyer to address this unspoken inhibitor and not in a way which makes the client feel like a child.
I remember when I was in law school, one of our adjunct professors made a point of telling us when talking to clients talk to them as if you are conversing in a bar, just that regular guy or gal sitting next to you on the bar stool whom you’ve never met before. Keep it conversational and real. Make sure the client understands what you are talking about in ‘their language’. If you want a great story on how to remember this I’ll share one of my favorite.
Long before I became a lawyer I made friends with a co-worker from Australia. No matter where he went, no matter what company he kept from boardroom to biker bar, he was so comfortable talking with anyone. I finally asked him his secret because it was clearly a gift. His answer:
If you want to fit in wherever you go, remember that words are like clothing. Don’t show up at a picnic in a ball gown and expect to fit in.
Truer words….
If I didn’t know and like one of the lawyers, (we went to law school together and he’s handled other work-related matters for us) I would have recommended we go elsewhere. But this is how clients become annoyed and distrusting of their lawyers and the lawyers do it to themselves.
Ultimately, I talked to my friend who appreciated what had happened and he moved to rectify the situation with each and ever potential client. Now it is fine. But not every client consultation has a legalese interpreter available! Your potential client may thank you for your time, you think you’ve closed the deal and you never hear back from them and wonder why. I can’t tell you how many times lawyers have told me this. I bet you even have a story of your own.
When it comes to communications with clients, don’t dummy down…just smarten up.
Susan,
I hear your frustration.
In an attempt to represent you and your colleagues the lawyers forgot that one piece of important information about representation your law professor told you. Have a conversation. It is really about finding out what your clients want and how they want to proceed over what you as their representative want and how you think you should proceed.
We attorneys have no trouble brinigng pie in the sky client desires to earth. It seems only when our clients are grounded that we feel ackward. We want to zealously represent them. They want to remain focused on the best outcome for them.
This is one of the biggest reasons I stopped litigating and now focus only on mediating conflicts between people. I can listen to their wants and needs as well as their adversaries. In the process of supporting each side, speak about where they are and where they’d like to go, the alternate party hears this grounded discussion.
Mediation may not have been available here, or more likely never been seriously considered by any of the attorneys or parties.
Thank you Susan for posting such a great example of where listening, the backbone of mediation, would have come in handy.
Debra, the old adage applies – we have two ears and one mouth to listen twice as much as we talk. The key is to actually listen.
Susan, I know that you didn’t mean for this to be funny, but I could not resist chuckling as I imagined you in the office trying to restrain yourself. This is a good post because while lawyers can write off client criticism of lawyers’ billing and practices, a lawyer’s observations have more credibility
I’m embarrassed to admit it but they pulled out some legal terms even I was unfamiliar with. That’s when I had to put the brakes on the conversation and intervene! I could only imagine how the non-lawyers felt. The worst part for me was the complete and utter lack of knowledge the senior attorney had about value pricing. But I can also say, which I didn’t write in the post, the other parties were not amused when they were discussing the meeting in the parking lot and the attorney came out of the building, gave a wave and then drove off in a 2014 BMW. That put the $80,000 legal fees in a wholly different perspective. She was entitled to drive into the night in the car of her choice, but it was just ironic she couldn’t appreciate the ‘value’ to the client of her services.
We try our best to offer value billing, meaning that we offer flat fees to our clients and have a discussion about the fees up-front before the work begins. We try to work with our clients to get them to understand the value of our work, but it can be difficult. Clients are faced with DIY web sites that offer online forms. They often do not value what we offer because they do not understand the distinction between legal information available freely online and legal advice from an attorney; and between a form they can pay a very small fee to download and a document that has been customized for their situation. And I have had more clients than I can count scoff at the idea of paying me for “just” a consultation because they don’t see any work product attached to it.
Listening to a client’s needs and educating them only gets you so far. You have to deliver something they can’t get online, something they can’t do for themselves, and you have to make them see *why* it is different and better and worth it.
Suzanne, I totally get what you are saying. It was why we went to an experienced lawyer in the practice area. No forms could address our needs. But It was her inability to appreciate the clients’ perspective on the case, to take the time to figure out how to make it work, to recognize maybe it had to be handled differently to get to a resolution which truly amazed me. Even if she had said, ‘well let’s discuss the finite value to each of you and then let’s see how we can shape this so it works. Maybe it will, maybe it won’t but let’s try.’ I would have respected that approach. It just was the wrong ends of two magnets repelling each other. Thankfully, the other lawyer was my friend, I’ve worked with him before very effectively and he figured it out. We let him deal with his ‘boss’ and the retainer and discussions have been quite effective and manageable since. So, in this case we were a bird in the hand but she was just not knowing what to do with us and ready to throw us away.
Dear Susan,
I can see your frustration when you come for help and don’t see any sight of getting one. The attorney’s candidness is the best key to connect with the client. Clear and concise language is what we are taught in law schools. If the attorney is experienced, its more likely that s/he will give you the road map of how the case will go. If the attorney is less experienced, he should state that and discuss the plan of bringing more experienced attorneys on board as mentors or off counsel to be considerate of the case outcome and costs to the client. I do wonder if the attorneys you spoke to knew you went to law school. In that case, they probably assumed (correctly or incorrectly) that you knew how things work and legalese shouldn’t be an issue. It’s only fair.
I also believe that you weren’t as candid with the attorneys either. Did you do the homework on the law firm before asking for the value pricing. Their success rate, experience, and standing in the legal community can be valuable. Remember that what the lawyer does sell is their time to work on your problems! Simply put, when you mention value pricing, you ask for a discount. In your letter, you stated that the attorneys said it will run up to $80,000 a year, which is by the way, standard for the amount of time spent on your case. That was their value. It seemed that you weren’t happy with it.
That said, assuming its a general consultation, I think the disconnect is between the result versus money paid. The lawyer cannot promise you 100% you will win. If they do, run! The client may think your case is a winner but as we enter the legal system, the client is not always correct in that assumption.
Bottom line is while attorney’s skill will affect the outcome, since you went to law school you should know, it’s a lot but still, it doesn’t always depend on the attorney. While the attorney can do all the work, research and be prepared to present your case he can do a great job but it may not be enough. Ultimately, its up to the judge to make the decision.
Margarita, thanks for joining the conversation. The attorneys knew I went to law school because one was in my law school class, however, my husband was the actual client along with several others
I worked with one of the lawyers previously as indicated in the post. However, I was the only potential client (once removed) who was a lawyer. There were six others in the room who were not who were all part of the consultation and the decision-making. They should not be catering to me in their presentation. They were very experienced in their practice area and when there is a strong referral and previous relationship prior to the consultation you don’t necessarily ask ahead of time all of their pricing models. This post wasn’t about their fees. This post was about their presentation and communication with the clients…the disconnect and inability to convey effectively, especially as experienced as they were. No one had an expectation of a 100% guaranteed win in exchange for payment. You’re right; someone makes that claim, you DO run for the hills!
Susan,
Thank you for responding. Thank you for clarifying about the disconnect in communication. I noticed many lawyers have issues with conveying simple human communication way to their client. Sometimes, experience outside legal world can help greatly. In my opinion, those who worked in sales such as restaurant, hospitality industry seem to have greater success. I am a ballroom dance professional. It helps me to relate to clients based on that experience. I hope you and your husband will find the lawyer who can be a good match for you.
Sincerely,
Margarita
I work with clients across the entire socio-economic spectrum, and this is great advice. Another great piece of advice that I learned from an attorney I still work with is that it is not always about what you, as a lawyer, can do, but it is about hearing from the clients what their best outcome looks like. Sometimes it isn’t about “winning” in the classic sense, and creative settlement options often arises when we stop looking at all matters in primarily a dollars-and-cents way of what is the highest-value-of-the-case vs. what-do-the-clients-actually-want/need. (Of course, sometimes it is all about the greatest value expressed in dollars, too, let’s not kid ourselves.)
With respect to value pricing, one caveat: certain fixed-fee clients will try your patience by being more demanding on your time than your fixed-fee fairly compensates you for. I find that with some clients, there is a need for them to have some “skin in the game” just to keep them aware of how they use my time with frequently unnecessary communications. (Efficiency may not be the first thing on a fixed-fee client’s mind.) Thus, it is sometimes necessary to negotiate a lower fixed-fee plus some hourly rate above a certain number of hours in order to protect ones time.
I also frequently send bills showing all the time I expended on a matter even though I am not necessarily compensated beyond the negotiated fixed-fee (which was based on advice I think I originally heard from you, Susan). The virtually universal response with these sorts of bills has been a greater appreciation for my time, which has led to generally happier clients (and several direct referrals). And the exercise of billing this way allows me to recognize more quickly which clients need to move from a fixed-fee model to more of a hybrid approach.
Anyway, great post.
John, thanks for the great additional insight and perspective. I really like your hybrid approach. It covers all the bases.
I heard the story of an American energy company facing considerable liability in Great Britain after an accident in the North Sea. They sought help from one of the best barristers in the realm, an English lord. They told him their situation and asked him about his hourly rate. He responded that he never charged by the hour, but rather, he calculated his flat fee based upon the overall risk to the client and the trouble necessary to obtain a favorable result. He charged this flat fee whether he settled the case within a week or argued it before his peers in the House of Lords. The American company paid the flat fee.
At trial, they thought they were losers when the plaintiffs’ barrister made a brilliant opening argument, but their lawyer-lord responded just as brilliantly. Before evidence could be presented, the case settled for a large sum, but still a considerable bargain for the American company.
Great story! Thanks for sharing, James.
Great discussions all. Listening to your client was/is key.
Susan, did you know that you can say “each” or “every” and still get your point across? “Each and every” is a redundancy that detracts from your message.
Hi Freda, As you know ‘each and every’ is an idiom structured to provide emphasis:
Idioms & Phrases
each and every one
Also, every last one ; every single one . Every individual in a group, as in Each and every student must register by tomorrow , or I’ve graded every last one of the exams , or Every single one of his answers was wrong . All of these phrases are generally used for emphasis. The first, although seemingly redundant, has replaced all and every , first recorded in 1502. The first variant dates from the late 1800s, and both it and the second are widely used. Also see every tom, dick, and harry. Every mother’s son (late 1500s) and every man Jack (mid-1800s) are earlier versions that refer only to males.
Do I understand your post correctly? You told the lawyer that this matter was only worth so much to you. The lawyer told you that the fees for handling your case correctly would be more than you were willing to pay. There was no meeting of the minds. You have sent the message to the lawyer that this matter is of only limited importance to you. Are you in effect asking her if she will exercise a lesser standard of care in view of your limited budget, something which is not ethically permissible in at least some jurisdictions.
My read is that the lawyer was asking you is that if it wasn’t that important to you, should it be that important to her. Should she provide the highest level of services when it is not that valuable to you? The difficulty seems to be the gap between client expectations, reasonable or unreasonable, and the lawyer’s requirements. Perhaps both sides are fortunate to part ways in view of the gap in expectations.
One possible middle ground would be to make an agreement in writing to limit the scope of the representation and undertaking, something which is ethically permissible.
@rmason – Thanks for joining the conversation. No, you didn’t understand the thrust of the post. The thrust of the post is we never got to this point in our communications of explaining the limited value to us. She simply talked at us and above us instead of taking the time to understand what we were hoping to accomplish and then the value we placed on a resolution. If we had gotten to the point where she understood the value to us and it didn’t make sense to her financially or ethically then you would be correct. This was the thrust of my post. The second thrust was the complete lack of knowledge about value pricing and the third point was her use of legal jargon which was both alienating and condescending. Regardless of an attorney’s financial requirements, it is incumbent upon them (when accepting a consultation) to properly ascertain the needs of the client and understand their perspective. At this point the lawyer can decide if it is a good match for representation. She did none of this and that was the problem.
I can certainly understand your frustration Susan but I can understand the lawyer’s frustration as well. I think the lawyer made the mistake when she engaged with you about the fee. If someone came into my office and suggested I change my business model for them I would politely let them know that my fee structure is my fee structure. End of that conversation. I turn down many clients because I tell them representation will exceed the expected value of the case and I give them some tips on how to move forward or I refer them to other attorneys if that’s what they want. Probably at the point where you seriously disagreed about fees the conversation should have ended. I likely would have told you I didn’t think this was going to be a good fit and wished you well. But she should have been able to explain the case to you in terms you could understand and if you didn’t feel she communicated well, again just not a good fit.
Emilie,
There were five other people in the room who were potential clients. I understood her. They did not. She did not understand what they were saying. If she did understand them and then chose to end the conversation, that’s a whole other story. But that’s not the way it went down. She was talking sideways because she literally was not hearing or understanding. The lawyer wasn’t frustrated. She was just in her own world. The point of my turning this into a blog post wasn’t for lawyers to defend their fee structures. It was for lawyers to be in tune with their clients’ needs, understanding they may lose clients due to lack of understanding value to a client and inability to consider options instead of remaining rigid and ignorant of alternatives in fee structures. As the economy changes and clients become more cautious and more open to non-lawyer options, lawyers DO have to be cognizant of this and consider different fee structures. I have a follow-up post coming so look for it.
Really listening to your client is the key. And I highly respect your view Susan.
Thanks, Allison. The saga continues and I’ll write more about it soon.