Thoughts and questions by a lake dweller

Stop Me If You’ve Heard This One: Six Lawyers Get On A Bus…

Stop Me If You’ve Heard This One: Six Lawyers Get On A Bus…

The client calls: “We got a Complaint served on us and we need someone to handle it.”
The lawyer’s mind begins to spin: “I am sure we can help – tell me about it.”
“Well, it was filed Calabash County and it is about a deal we made a couple of years ago to build a large FNC machine. There were some problems, none of them our fault….”

The lawyer is in full sales mode: “We know that county well and of course we know about FNC machines. How about if we set up a meeting to talk about what happened?” This is not really a lie, at least not more than a white lie.

“I don’t have time now. Let’s just get an Answer filed and go from there. I will have the Complaint faxed over.” At most, there will be an initial meeting, usually over the phone, to get the basic facts of the case and to find out what documents there are. Maybe there will be a witness identified who knows the history. Usually there is a discussion of fees – what are the rates, how much are you willing to discount them? And the rest gets put off “until we have more time” or “until we figure out what this is all about.”

And it is as if six lawyers climbed onto a bus, headed over to the client’s office, grabbed a file, and then commenced driving. Six months later (if this story has a happy ending), someone near the back of the bus yells: “Hey, where are we going anyway?”

After 30 years of practice, I see this scenario time and time again. There is an initial flurry of activity to get the Complaint, file an Answer, maybe draft some discovery, and then the case takes on a life of its own. The other side is making demands, the Court is scheduling hearings, and beating the other side becomes the goal. The lawyer wants to win every motion, every argument, everything. That is what victory looks like. Right?

Well, maybe in a vacuum.
What both client and lawyer really need to stop and think about is:

1) Who are the stakeholders?
2) What is the goal, or better, what does success look like? 3) What are the timeline constraints?
4) What are the monetary constraints?
5) What relationships do we need to treat with special care?

When we don’t ask these five questions, when we don’t set the goals in the beginning, the lawyers on the bus don’t have a destination and they don’t have a timetable. The client doesn’t know what the stops are. Nobody knows what the fare will be, or when the bus will “arrive” at it’s destination.

Why does this happen? I would suggest that both lawyer and client are guilty, because neither is thinking long term.

The lawyer doesn’t want to rock the boat; he or she is just glad to have the case. However, the lawyer is ignoring what will inevitably be an angry client if the case, and the fees, drag on. The client is busy and wants this bit of overhead off his or her desk. The client is ignoring the eventual frustration of a case, and fees, that drag on, and drain resources. Think about the cases you have been involved in where the resolution of the case was not something that anybody felt good about. Everyone is glad it is over, but sort of angry about what it cost.

Nobody really wants to have this initial planning meeting. The meeting will take too long. It will be expensive. It will not be fruitful. It will only lead to other meetings.

But it doesn’t have to be that way. First, we lawyers need to tell our clients that we want to know what success is – right up front. Tell the client before the meeting that the most important question will be: “What does success look like to you?” Give the client a couple of days to think about this. Everyone has a boss or someone to report to. What will success look like to the boss, to the board, to the investors?

Second, come in with tools that can help plot the budget. Think about what the case might involve. Think about where the big spend will come. I have a little piece of software that helps with this. Someday when I have time, it will become an iPad app. If someone reading this builds that app first, I will happily buy 50 copies and distribute them to my partners. The point of the app is to input what you think is a proper number of lawyers and their rates and then plot what you foresee them doing over a timeline that approximates the timeline of the case. This is strictly “rough justice,” but it can tell you a great deal about when you will be spending money. The app has two key features that distinguish it from a traditional budget: the ability to vary the numbers and very quickly see how that changes the spend, and the timeline. It is good to know what you will spend, but it is better to know when you will be spending it. It is best to see the spend over time so you can pick when you want to settle the case, if you do.

The spend and the goals are key components that the lawyer and the stakeholders need to understand. At the same time, this planning meeting can also illuminate what kind of fact and expert resources are needed and where they are.

Once we know the costs and the goals, you can design a fee that provides proper incentives to get the goals accomplished efficiently.

I don’t know about you, but when I get on a bus, I like to know where it is going, what the stops will be, when I am going to get there, and how much the ride is going to cost. Sure, the bus may get lost or break down, but that should not be the norm.