Should You Write Yourself a Bonus in a Fee Agreement?
I had nothing to do with this case, but an attorney friend of mine alerted me to this very interesting issue arising from an attorney fee application.
Here is the scenario. A party won a breach of contract action and was entitled to attorney fees under the contract in question. As you are no doubt aware, the normal mechanism to calculate reasonable attorney fees is by way of the lodestar method – multiplying the reasonable number of hours spent on the case times the hourly rate, which must be in line with what other similarly situated attorneys charge.
But there are a number of variables. In some instances, if the case was particularly challenging, a multiplier is permitted. Also, if the case was taken on a contingency basis, courts have held that can be an appropriate method for determining the fees. For example, keeping the numbers simple, if a $300 an hour attorney took a case on a 40% contingency, and spent 100 hours on the case to win $100,000, then his hourly fees would be $30,000 but his contingency fee would be $40,000. Cases have held that the a $40,000 fee award is appropriate since that is the real cost to the client and because we must encourage attorneys to take contingency cases since plaintiffs might not otherwise be able to afford counsel.
So back to our scenario. The attorney was representing the client at a rate of, say, $400 per hour. The client could not keep up with the bills, so the attorney agreed to reduce his rate to $200 per hour, with the understanding that if he prevailed in the action, and obtained a verdict above a certain amount, he would get a $100,000 bonus. He won, he achieved the milestone, so in his motion for attorney fees, he sought the $100,000 bonus from the other side.
He argued that the bonus was no different than a contingency fee, and he should be able to obtain it because of the risk involved. Like an attorney handling a matter on a contingency basis, he had made the action affordable to the client by way of this bonus arrangement, and in that manner had made representation available to a client who might not have otherwise been able to afford counsel.
Conceptually the argument is not too far off the beam, but it raises a possibility that causes me great concern. What would keep attorneys from adding bonus provisions to all of their agreements? Indeed, if such fees were permitted, the situation would soon become standard even at the attorney’s full hourly rate. “I charge $450 per hour, but I only take cases where there is a chance of also recovering a significant bonus, so if you won’t agree to a $100,000 bonus, I can’t represent you.” It’s not hard to imagine that some attorneys would use this as a simple method by which to give themselves a big payday at the expense of the opposition, without increasing the fees to their own client.
In this case, the motion failed to recover the bonus, with the judge deciding that the lodestar method was appropriate, and that the bonus would amount to an unearned multiplier. But interestingly, he did consider it and had he found that the case was appropriate for a multiplier, he might have allowed the bonus. So, I throw it out there as something to keep in the back of your mind, should the appropriate circumstance ever arise where you must cut your fee in order to keep representing the client, but want to offset the risk of doing so. So long as you are honest and ethical with its application, I don’t see any downside to this approach.
Posted in Alternative Fee Arrangements, Business, Flat Fees, Income, Your Own Law Firm | 
Tags: Aaron Morris, Attorney, Attorney Bonus, Fee Agreement | 
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From the Trenches – Genius Advocacy or Sleazy Tactics?
Just one in a series of sick attorneys.
I finally started a trial this week after the defendant had managed to continue it seven times and delay my client’s day in court for almost a year. Here is the technique he used, and while it is not something I would ever do, I must begrudgingly acknowledge his creativity.
The defendant is a doctor. His first attorney billed a bagillion hours at $500 per hour, until the Defendant could no longer keep up with the huge bills. That attorney brought a motion on the eve of trial to be relieved as counsel, alleging he was not being paid. I’ve seen a number of judges respond to such a request with “too bad, so sad”, but this judge took pity and let the attorney out of the case. Continuance number one, to give the defendant time to find new counsel.
The defendant then showed up on the eve of trial with a new attorney, who begged for more time to prepare. Continuance number two. He asked for four months, but we kept it to two months.
As the trial approached, we could not get the new counsel to cooperate in the pre-trial exchanges and the like. We found out why when he showed up and asked for another continuance. At the risk of sounding insensitive to his medical condition, his claim was amazing. He represented to the court that he suffers from a medical condition that requires medication, but that the medication makes him too loopy to prepare for trial. Therefore, since the court had only afforded a two month continuance, he had to go off the medicine in order to put his mind in a place where he could prepare for trial. But that then let his condition worsen, so now he could not proceed with trial. He had a doctor’s note in hand, attesting to the fact that he absolutely had to get back on the meds for a couple of months to get his condition back under control.
When it appeared that the judge was going to continue the matter again, we explained the obvious scenario opposing counsel was creating. If the medicine renders him unable to prepare for trial, then what good will it do to grant another two month continuance to let him go back on the meds if he will be unable to prepare for trial? The judge met us half way, and set a deadline for the ill attorney to do the pre-trial conference, and if he could not, defendant would have to find new counsel. Continuance number three.
That deadline came and went, so we went to court to explain what was going on, and new counsel appeared, asking for six months to prepare for the trial. (We must really intimidate opposing counsel, who feel that they need half a year to get ready to fight us in court on a case that prior counsel has already spent a year preparing.)
Anyway, the details are getting tedious, but the punch line is that this new attorney showed up on the trial date claiming he was too sick to go forward, and the trial was continued. This is pure speculation, but if I were the suspicious type, I would think that the defendant doctor, who had announced that he wanted to continue the trial as long as possible, was intentionally hiring attorneys with medical conditions in order to delay the trial.
Posted in Business, Income, Starting Your Own Firm, Starting Your Own Law Firm, Your Own Law Firm | Tags: Sick Attorneys, Trial Continuance | No Comments »
Don’t Be That Attorney — Learn to Take Your Lumps With Aplomb
Ah, memories. Like the corners of my mind.
I came across a news article about an attorney who is experiencing the sting of a footnote by an appellate court, and it reminded me of my own footnote experience.
First, my experience. In one of my more bizarre cases, I represented a small business in an action against Bank of America. The bank had closed my client’s checking account because they suddenly decided it was a competitor. That’s fine, but they did so without notice, took out all of the money, refused to return it for ten days, and were returning all checks that were presented as NSF checks (all while happily charging my client fees for the bounced checks). We sued for the loss of profits due to the company’s damaged reputation.
Bank of America brought in the most impressive accountant imaginable, who worked into the testimony that he is so trusted that he is the guy who tabulates the votes for the Academy Awards. You just had to love him. I wanted to invite him to my next barbeque.
But during his examination, I noticed that he had made a terrible mathematical error in his accounting. I couldn’t believe what I was seeing. He testified that even if all of our evidence was true, our damages would only be about $90,000. But in the string of equations, he had made one error that amounted to a factor of about ten.
Rather then to show him his error on cross-examination, and afford him the opportunity to try and dance around it, I left it until my closing argument. I picked up the blow-up and showed the jury the math error, arguing that if we believed Bank of America’s expert, then my client had suffered $900,000 in damages, once the math error was corrected (which was far more than we were seeking).
The jury gave us every penny we asked for – a nice six figure judgment.
Bank of America unsuccessfully appealed on about a thousand grounds, and one of them was that it was improper for me to claim a math error by their expert. I kid you not – Bank of America argued that if their expert testified that 1 times 100 equals 10, then that testimony can only be refuted by another expert, and it was therefore error for me to argue otherwise without any such evidence. Like I said, the appeal was unsuccessful.
So here is the footnote part. It was almost as though the Court of Appeal wanted to show that no expert is perfect (they apparently really liked him too), so the Justice writing the opinion dropped a footnote and noted that my expert had also made a mathematical error of . . . drum roll . . . one dollar. Really? That rated a footnote?
In reality my expert had not made an error. Apparently it was not clear from the record that my expert had rounded the cents when he was testifying, but the chart he was referring to was correct. But that doesn’t keep me from giving the expert grief every time I retain him. “Stan, would you please double check your numbers this time so we don’t get another footnote?”
At least the footnote dealt only with my expert and not me. The attorney in the news article I was reading was not nearly so fortuneate. The attorney is Jerry Albert, an Assistant U.S. Attorney. The article is not clear on exactly what happened, but apparently Albert was cross-examining the defendant in a criminal trial and summarized some testimony from a prior proceeding. The court decided that he had mischaracterized the testimony, and on that basis ordered a mistrial.
The matter was appealed, and after the initial decision came down, the government moved to have Albert’s name removed from the opinion, since it spoke critically of his alleged misstatement, asking instead that he be referred to only as “the prosecutor”. The result? The Ninth Circuit Court of Appeals amended the opinion to add this:
[U]pon initial release of this opinion, the government filed a motion requesting that we remove Albert’s name and replace it with references to “the prosecutor.” The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government’s suggestion and denied its motion. We have noticed that the U.S. Attorney’s Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney’s Office for the District of Arizona, “Northern Arizona Man Sentenced to Federal Prison for Arson,” (January 31, 2012)…. If federal prosecutors receive public credit for their good works — as they should — they should not be able to hide behind the shield of anonymity when they make serious mistakes.
Albert could have taken his lumps, which initially consisted only of the references in the original opinion. Likely few people would have ever seen the opinion or learned of his alleged misdeed. But by trying to hide the mistake, he and his office created the Barbra Streisand effect, creating much more buzz about Albert than ever would have occurred. Because of his attempt to have his name removed, many who otherwise would not have done so have now written about Jerry Alberto, including me.
Don’t fan the flames. Don’t be that attorney.
Posted in Rules for the Practice of Law, Your Own Law Firm | Tags: Aaron Morris, Court of Appeal Footnotes, Experts, Streisand Effect | No Comments »
Think Twice Before You Send that Demand Letter Out of State
How Metabolic sees the case
The case of Metabolic Research, Inc. v. Scott J. Ferrell, et al. is turning out to be a fascinating case on several levels, including liability considerations for attorneys and SLAPP issues. Briefly, here are the facts as set forth in a recent opinion of the Ninth Circuit Court of Appeals.
Scott J. Ferrell is an attorney practicing in Orange County, California. He apparently believes that a supplement being made by Metabolic and sold by GNC (Stemulite) is bad stuff. To that end, he sent demand letters to Metabolic and GNC in Nevada and Pennsylvania, respectively, accusing them of violating the California Consumer Legal Remedies Act by way of false advertising, and threatening to sue them (presumably in California)* if they did not stop their (allegedly) evil ways and agree to an injunction to that effect.
In California, Ferrell’s letter would likely have been determined to be part of the litigation process and therefore protected, UNLESS it was deemed to be extortion. (See Flately v. Mauro.) In California, the issue would have proved very interesting, because while Ferrell was not demanding any money, the hallmark of true extortion, the injunction he was demanding was so onerous – including a requirement that all profits be disgorged – that Metabolic claimed it would have put it out of business. Nonetheless, in California it might have been decided that the letters did not cross the line, and Ferrell would have been safe from suit.
But Ferrell’s letters were sent outside of California. In November 2009 Metabolic filed a lawsuit in Nevada State Court against Ferrell, charging extortion and racketeering based on his demand letter. Ferrell removed the case to Federal Court (I never would have done that for the reasons that follow), and then brought a motion to dismiss based upon Nevada’s anti-SLAPP statute, claiming that the lawsuit amounted to a SLAPP because it was suing him for engaging in litigation.
Motion DENIED. The District Court found that “Nevada’s anti-SLAPP legislation only protected communications made directly to a governmental agency and did not protect a demand letter sent to a potential defendant in litigation.” Again, as would be appropriate in California but not necessarily elsewhere, Ferrell took an immediate appeal.
Appeal DENIED. Federal courts do not like interlocutory appeals, and will find a way to reject them. The court did an in-depth review of Nevada’s anti-SLAPP statute, and concluded there was no right of immediate review of a denial of an anti-SLAPP motion. The court referred to this as a “run of the mill anti-SLAPP motion” (ouch), and held that a District Court judge affords sufficient safeguards to protect defendants from SLAPP actions without the added protection of an immediate appeal. However, to twist the knife a little, the Ninth Circuit threw in that Ferrell could have proceeded by way of a writ of mandamus, and that it was offering “no opinion on how we might have decided” such an application had it been pursued.
Lesson 1: Consider that when you send a demand letter out of State, you may be subjecting yourself to an action in that jurisdiction.
Lesson 2: (And I have seen this over and over) Don’t remove a case to Federal court just because you can. The motion may well have been decided the same way in State court, but I think the odds would have been far better.
* That’s not me presuming, the court opinion used those words.
Posted in Business, Starting Your Own Firm, Starting Your Own Law Firm, Your Own Law Firm | Tags: Anti-SLAPP, Extortion, Motion, SLAPP, Starting Your Own Law Firm | No Comments »
Sleazy Attorney Technique No. 8: The Phantom Settlement Offer
Yesterday’s post about flat fees made me think of a war story which just happens to illustrate Sleazy Attorney Technique no. 8.
When I first started practicing I had to be hit over the head with this technique a few times before I knew what was happening. I tend to assume the best of people until they give me reason not to, and the first few times this happened I wrote it off as a simple mistake until I finally realized what they were doing.
Here is the scenario. You represent the plaintiff in a breach of contract action, and the opposition is about to take the deposition of your client. You’re all sitting around the conference table ready to begin, and opposing counsel turns to you and says, “Before we go on the record, I don’t want to go through a whole deposition if we don’t have to, so I was just wondering if you got a chance to present our settlement offer to your client?”
There was no settlement offer, as the attorney well knows. His goal is to plant a seed of doubt in your client, hoping it will blossom into conflict. The client will wonder, “why isn’t my attorney communicating settlement offers to me? Is he trying to keep this case going?”
I’ve seen many variations on this technique, so be on your toes whenever the opposing counsel is in a position to indirectly communicate with your client, such as at depositions and settlement conferences. Some attorneys apply the technique through their clients, instructing their client to contact your client to deliver the message.
So how do you protect against this sleazy attorney technique? Just explain the technique to your client, and tell them to expect it. Explain that you are required to present all settlement offers, no matter how absurd, and that you can get in trouble with the Bar if you fail to do so, so the client never needs to worry that you won’t communicate a settlement offer. So if opposing counsel ever claims otherwise, he is just employing this tactic.
Back to my war story, a funny example coming from a tragic situation. This attempt to drive a wedge between you and your client is not limited to phantom settlement offers. I represented a client who had been defrauded out of almost half a million dollars, and the con artist was represented by his attorney daughter. It was truly sad to watch this woman have to defend her con artist father, and you could see that she desperately wanted not to believe what had happened.
In any event, I guess the fruit doesn’t fall far from the tree as they say, because during my deposition of her father, she launched into one of the most extreme applications of this technique I have ever seen. Her father was evading all the questions so I had to keep pushing, and his daughter suddenly blurted out the following diatribe:
“Counsel, you told me at the beginning of this case that you were going to turn this case into a cash cow, that you were going to churn the file and run up the attorney fees for your client, and I hoped you were just posturing, but I have never seen an attorney spend so much unnecessary time on a case just to get a big fee out of it.”
There was this moment of stunned silence, I turned and looked into my client’s eyes, and we both burst into almost uncontrollable laughter. What the attorney failed to realize or anticipate when she made up this whopper was that I was handling the case for a flat fee. If, indeed, I was spending a great deal of time on the case, then she had paid me a tremendous compliment, because whether I spent 100 or 500 hours on the case I was going to be make the same amount.
Had I been representing the client on an hourly basis, the trick might have worked. I can imagine it would be hard for any client to believe that an attorney would engage in such theatrics to gain a tactical advantage. Make sure you educate your client on this possibility.
Flat Fee Arrangements Promote a Winning Practice
Flat fee arrangements are amazingly liberating.
Most of my fellow litigators won’t take a case on a flat fee, either because they are concerned that they will grossly underestimate the time the case is going to take and end up with an effective hourly rate of $25, or simply because they think they’ll make more on a straight hourly basis.
I acknolwedge that some cases just do not lend themselves to a flat fee because of the unknown factors, but when you have a case with a reasonably predictable time factor, a flat fee is a fantastic way to go, not because it earns you more (although it can), but because it allows you to do more.
This may be counterintuitive to some, and probably blaphemous to attorneys that are only in it for the money, but I’m in it to win and a flat fee gives me greater freedom to do what I need to do to win.
Say you have a case that is crying out for a demurrer. On a straight hourly arrangement, your discussion with the client goes something like this:
You: ”I really think we should bring a demurrer. The third cause of action for breach of contract fails to allege performance, and here they really can’t honestly allege performance, so I think that will get rid of that cause of action.”
Client: ”So if you bring this motion the case is over?”
You: ”No, it will just get rid of that one cause of action if we prevail.”
Client: ”How much will the motion cost?”
You: ”With the motion, the reply and going to court, I can probably do it all in ten hours, so $4,500.”
Client: “So I pay you $4,500 and the motion may not work and even if it does it doesn’t end the action it just gets rid of one cause of action?”
And what the client is thinking is: “Damn attorneys, he’s just trying to run up the bill.”
With a flat fee, all those conversations are eliminated. If I think a demurrer is needed, I bring it. If I think more discovery is needed, I propound it.
And this isn’t pure altruism. Yes, I do this to win, but being free to do everything I want to do on a case may allow me to prevail on the action much more quickly, making the flat fee a winning bet for me financially.
A few tips for flat fees:
Educate the client as to the fantastic deal you are offering, because other attorneys lie. Less scrupulous attorneys snare clients with a small retainer, never disclosing what the case could ultimately cost. So, one attorney is offering to handle the case with a retainer of $5,000, and there you are quoting a flat fee of, say, $25,000, not including trial. You need to make the client understand that a small retainer is a false economy if the fees ultimately go far beyond the flat fee you are offering. In one case I quoted an amazing flat fee for a client because he had limited funds and I really wanted the case because it presented a cutting-edge legal issue that would give me bragging rights if I won. When I didn’t hear back from him, I called to see what was going on. Turns out he had shopped my offer around, and another attorney had expressed shock and outrage that I would quote such a high number, telling the client the case would never cost near that amount. Three months later the client was back at my door, asking if I would still handle the case for the amount I had quoted. The attorney he retained had already billed him more than the flat fee I had quoted.
Always offer an hourly and flat fee arrangement. To counter the above problem, your fee agreement should always offer both a flat fee and hourly arrangement. The client may have reason to believe that the matter is going to settle quickly, and therefore thinks a flat fee would be a waste. Be sure to include language that the flat fee is not an indication or estimation of what you think the case will cost on an hourly basis.
Make clear that you get to drive the bus. The agreement must provide that under the flat fee arrangement you have discretion to decide what is necessary to prosecute or defend the action, and that any requests by the client that you deem to be unnecessary will be billed on an hourly basis. Without this provision, the client will decide that since it is not costing him anything, you should take the deposition of everyone living in Malibu, just in case they know anything.
Break the flat fee into parts. Some attorneys that offer flat fees hedge their bets by quoting a flat fee that covers all the way through trial, knowing that most cases don’t go to trial. Not only is that unfair to the client, in my opinion, but it also results in sticker shock to the client and allows them to fall prey to those aforesaid lying attorneys. At a minimum break the flat fee into two parts — one for pre-trial and another if the case goes to trial. However, a flat fee for a trial can put you in an awkward position if, for example, defendant has a change of heart and stipulates to judgment. (I had that happen twice in back-to-back cases. I guess I’m just scary looking or something.) My fee agreement provides that the flat fee for trial is payable in advance, but will be treated as a cap, not earned upon receipt. I keep track of my hours, and if I pull off a quick victory, the client gets the flat fee back, less my regular hourly rate.
Liberate yourself! Go for the flat fee.
Let Me Google That For You
I just had one of those “how did I not know about this great website” moments. But first let me tell you how I’m going to use this site.
Here is how the call typically goes.
Caller: ”I just got fired and my union isn’t doing anything about it.”
Me: ”Oh, I’m so sorry, we don’t handle wrongful termination cases that involve union workers. There are some additional procedures when a union contract is involved, and we feel that clients are better served by attorneys who specialize in those type of cases. Unfortunately, the attorney I used to refer those to got out of the business, so I’m looking for a good referral. If you do find a good attorney, would you do me a favor and call me back with your experience so I’ll know if that would be a person to whom I can send union cases?”
Caller: ”How would I do that?”
Me: ”Call me back?”
Caller: ”No, find an attorney.”
Me: ”How did you find me?”
Caller: ”I Googled you.”
Me: ”Good. Do the same thing, just add an additional search term to get an attorney that handles union cases.”
Caller: ”How would I do that?”
And so it would go.
Now with Let Me Google that For You (lmgtfy.com), I can find the information the caller is seeking, and send it to them in an email. It gives me a link I can send with all the search results. Click this link to see what the caller receives.
OK, I probably won’t use it. But I could.
“Freemiums” are a Great Law Firm Marketing Tool
“Freemium” is a business model that works by offering a product or service free of charge (typically digital offerings such as eBooks) while charging a premium for advanced features, functionality, or related products and services. The word “freemium” is a portmanteau* combining the two aspects of the business model: “free” and “premium”. Thanks Wikipedia.
Freemiums are a great way to promote a law firm. A potential client visits your blog and is greeted with an offer of an essential report for free. And why would you do that? Because you must capture the client’s email address in order to provide the free report. This allows you to follow up with the potential client, and the report with all your contact information remains in the hands of the potential client so he or she can contact you when ready.
Clients shop for attorneys. Hopefully your website will be enough to generate a call, but that may not seal the deal. On many occasions a potential client has called, I’ve wowed them with my fount of knowledge, and sent them back to my assistant to schedule an appointment. A few minutes later, the phone rings again, and it is the same client calling to discuss the case, not realizing she is calling the same firm. She is just working her way down the Google results and calling every attorney she finds. A freemium can distinguish you from the pack of attorneys clients are going to call.
Most attorneys I discuss this technique with have never considered using a freemium as a marketing tool, and can’t even envision how they would do so. Of course, whether the freemium approach is suited to your firm will depend on the nature of your practice, but I can’t imagine too many circumstances where it would not work.
A bankruptcy attorney could offer the report, “Ten Things You Must Know to Survive a Bankruptcy.” I’d want that report. A probate attorney could provide, “Five Steps to a Painless Passing.” Okay, that’s sounds a little macabre. I’ll have to work on that one, but you get the idea.
Needless to say, the report should provide valuable information. I’ve occasionally download a free report and found that it offered no information but rather was just an ad for the service being offered. Irritating your potential client is not an effective marketing technique.
And speaking of effecting marketing, I came up with this topic because of the excellent implementation of a freemium by Lilach Bullock. I “followed” her on Twitter (sounds a little stalkerish), and her auto response (I’m assuming it was automated) was the following:
“Thanks for following me. I would like to give you a FREE copy of my Ebook – 5 Crazy Ways to get buyers to your website.”
She then provides a link to a page that required me to give my email address, and a few seconds later her report was in my inbox. I considered just providing the link here, but she may want it to be a reward for following her on Twitter, so that would blow the whole deal.
The report is very good; one of the best freemiums I have ever received. If I had paid five bucks to put this on my Kindle, I would have considered it money well spent. Ms. Bullock does tweet A LOT but she seems to be providing very good suggestions for Internet marketing from what I have seen thus far. Be sure to follow her on Twitter (@lilachbullock) to get your copy.
Speaking of Twitter, be sure to visit Pay With a Tweet. You offer your freemium in exchange for a tweet about it. I haven’t tried it, but it sounds like it could be a great way to build some buzz.
* And thanks Wikipedia for the word of the day. ”Portmanteau” - a word or morpheme whose form and meaning are derived from a blending of two or more distinct forms (as smog fromsmoke and fog). I’ll be sure to work that into my next brief.
Posted in Business, Income, Internet Marketing, Starting Your Own Firm, Your Own Law Firm | Tags: Aaron Morris, Freemiums, Law Firm Marketing | No Comments »
Don’t Let the Client’s Problems Create Problems for You
Being actively concerned about your clients’ problems will naturally come with the territory if you have a heart. When you are representing someone who is about to lose their home due to fraud, or lose visitation of a child through a custody battle, you can’t help but be awed by the life-altering nature of your representation.
I still lose sleep worrying about my clients’ cases. Sometimes the stakes are just so high I shudder at the potential outcome. I have complete confidence in my own abilities, backed by a great success rate, but you can never eliminate all the vagaries of litigation.
However, I now have fewer sleepless nights because I eventually realized that the stress was coming from two directions, and a roadblock could be placed in one of those paths. There is the unavoidable stress that is going to come from any litigation because you want your client to prevail and are concerned that the judge or jury will reach the wrong conclusion. But there is often another source of stress created by the client. That stress can be eliminated if you are firm with the client.
For example, I used to have continual problems with discovery responses. The requests would come in, and my paralegal would immediately send them to the client with a deadline for the client’s input, far enough in advance of the due date for us to meet with the client and finalize the responses. Inevitably that deadline would come and go with no response from the client, and we had to act like bill collectors, bugging our own client for the responses, while seeking extensions from the other side and hoping we won’t ultimately be sanctioned.
In some extreme cases, I even had clients that simply refused to respond to discovery, especially requests for admissions. There’s something about requests for admissions that sends some client into orbit. They think that admitting to any fact, no matter how innocuous, provides the other side a victory.
“Admit that Exhibit 1 attached hereto is a true and correct copy of the contract.”
“I won’t admit to that!”
“But it is a copy of the contract. We attached it to our complaint.”
“I don’t care. They’re up to something. I won’t admit it.”
This is a perfect example of making the client’s problem your problem. If the client doesn’t want to cooperate in the process, he is free to make that decision. Now when the deadline comes, the client gets one friendly reminder. The next “reminder” is a nice letter telling the client how much we have enjoyed representing them, and how we are saddened that we cannot continue representing them because of their decision not to cooperate in the discovery process. We enclose a substitution of attorney for them to sign. That always generates a phone call from the client, and we schedule an appointment to sit down and prepare the discovery.
In one case a woman came to me in tears, because she thought she was about to have her case thrown out of court. She was representing herself in the action, and had been served with a motion for summary judgment. Based on her understanding of motion deadlines, she thought the opposition was due the following day. She had no idea how to oppose the motion, so she was sure that she was going to lose her case.
I looked at the motion, and found that her fears were based on a misunderstanding. She had calculated the deadline under the rules for standard law and motion matters, not knowing that a motion for summary judgment provides much more time for an opposition. In fact, she had 60 days remaining to file her opposition. As you can imagine, she was thrilled with this news. She left with my fee agreement, promising to sign and return it with the required deposit. And in fact, she did return with the signed retainer, albeit without the fee deposit, 60 days later. Having dodged the bullet once, she waited until the day before the opposition was due to seek to hire me.
The old me probably would have scolded her for waiting so long, and then proceeded to set everything aside so that I could deal with the motion on an emergency basis. But the wiser me declined the case. I hated that the client would probably lose her case for failing to oppose the motion for summary judgment, but I did not create the problem and would not pay the price for her delay. I have no problem with emergencies, but I am not going to put my name on a rushed pleading.
In retrospect, I realize she was probably setting me up. Both times she visited me, she said the money would be forthcoming, but that I had to deal with the emergency. When I alleviated the emergency the first time, she just waited until it was once again an emergency, hoping I would deal with the motion before realizing she was not going to make good on her promise to pay me.
Circumstances like this will arise often in your practice. Emergencies can be a great source of business. I have been referred a number of trials because it is known that I am willing to step in on the eve of trial when a conflict arises. But for a successful and fulfilling practice, you decide which emergencies you want to deal with, and don’t let the client create stressful deadlines for you.
Embrace the stress that naturally comes wanting to win for your client, but keep things in perspective. Remember that almost all of the problems faced by clients are self-inflicted to some degree. A woman may be going through a horrible divorce through no fault of her own, but she is the one that decided to marry the schmuck in the first place. A homeowner may be at risk of losing his home because he used it as collateral for a loan, but he made that decision. Your task is to do your best to get the clients out of these predicaments, not to take on the weight of their bad decisions.
