I remember all those many years ago when starting my firm, that I felt like I had to act like the big firm I had come from, which included having a receptionist to answer the phone. I thought it appeared unprofessional for an attorney to answer their own phone.
Turns out, clients love that we answer the phone. I can see from caller ID who it is, and answer with, “Good morning Martha. Did you hear back from the appraiser?” I love the relationship we foster with our clients; where we work as a team. Just this week, a client told his insurer that he would pay the difference between what the insurer was offering, to keep us as counsel on the case, as opposed to being represented for free by the insurer’s counsel.
What does any of this have to do with the headline? I just wanted the record to be clear that we love our clients, although sometimes they can act crazy. Here are a few examples (as always, with facts changed as needed for privacy), along with some lessons.
They are up to something.
With 30 years of practice, I have learned that most client craziness comes from an irrational fear that the opposition is “up to something.” They will insist on counterproductive tactics, just to keep from going along with something the other side has proposed.
In a recent case, it was essential to get a fair appraisal of a property. The appraisal would not really determine anything, but the parties were light years apart in their estimations of the worth of the property, and a ballpark number was needed to get the ball rolling.
There was so much bad blood between the parties, that the attorneys knew there was no scenario whereby the parties would agree to an appraiser. To break the log jam, opposing counsel very generously suggested that our client could pick three appraisers, and his client would then pick one from the three.
A total victory for our client on this one detail. He would control the universe of appraisers. He could make certain that all three were acceptable to him, and therefore it would not matter which of the three was chosen by the other side. He was no doubt going to think we were brilliant tacticians for extracting this solution from the opposition.
He was having none of it. It was too good, so the other side must have something up their sleeve. He insisted that I flip the deal. They would have to pick the three appraisers, and he would then choose.
“So let’s run the scenario,” I said. “You want Defendant to provide three appraisers. He and his extended family are all in the real estate business, and probably half of them are certified appraisers. So, appraiser number one will be the Defendant’s cousin Vinny, the second will be his wife, and the third will be his daughter’s current boyfriend, who is anxious to curry favor with Defendant. Which one will you pick?”
“It doesn’t matter. They thought we would jump at this deal, because it is too good to be true. Making them pick the three appraisers will catch them totally off guard.”
In this story, the client had some acquaintances who had been quite successful investing in gas stations. When they decided to invest in a 7-Eleven and gas station combo, they offered to let our client in on the purchase. He invested about half a million dollars, but being that he was going to be a future client of ours, he made certain that there was no paperwork whatsoever to indicate the terms of the deal, just to make the litigation more challenging.
Thankfully, there was a paper trail of the money, so unless Defendants were going to claim that the money was for a really big Slurpee, I was confident we could prove the money was an investment in the gas station.
From discovery, we learned that the Defendants’ claim was just about as ridiculous as the Slurpee defense. They claimed that our client wanted to learn the ins and outs of investing in gas stations, and the $500,000 was for tuition. He was paying for the right to look over the Defendants’ shoulders during the transaction.
Specifically because the claim was so ridiculous, the client was certain that they knew something we didn’t know. He wanted more and more time and money spent on discovery, to try and uncover the secret. He insisted on a discovery plan, and when my plan included only three depositions, he returned with a list of 17. (I kept it to three.)
I told him there are no guaranties, but that in this case he would either win, or win bigger. He would certainly get his money back with interest, but we were also seeking a portion of all profits.
About thee days before trial, he told me to dismiss the case. He was so completely convinced that the Defendants had a card up their sleeve, he could not bear the idea of having the trap sprung on him at trial, and losing everything. He was confident that if he showed good faith by dismissing the action, he could convince them to return some portion of the money.
After hours of conversations, with me trying to convince him that was a really bad idea, we finally reached a compromise. I told him that based on my experience with this judge, he almost always makes the parties meet for one last settlement discussion before starting the trial. The client would be in a better position for settlement if the trial was hanging over the heads of the Defendants. I told him that if the judge did not send the parties out to discuss the matter, or if he did so and no agreement could be reached, I would dismiss the action if that was still what he wanted.
The day before the trial, opposing counsel called with a settlement offer. The return of all of our client’s investment, plus a portion of all the profits earned.
The client was thrilled, right? Wrong. The deal was too good. The Defendants must be up to something. He told me not to take the deal, and to proceed to trial. I explained that we would be turning down exactly what we would be seeking at trial. He eventually relented.
Defendants almost immediately delivered the check, and after it cleared our trust account, the client came in to pick up his check. As his final parting remark, I was anticipating, “You are the greatest attorney ever. The three most significant events in my life are the day I got married, the day my child was born, and the day I decided to hire you as my attorney.” You know; the usual.
Instead, he said, “I get what you were saying; that even if we went to trial, the best we could have achieved was this result. But I still wish we had gone to trial. Now we will never know what they were up to.”
Of course, sometimes, they really are up to something.
In a defamation action, where I was representing the alleged defamer, the plaintiff’s discovery responses stated that he had no proof of any damages. That’s not as unusual as you might think. If someone writes a fake review about your business, you may never be able to quantify the damages caused by that review.
But defamation law recognizes this fact, and here in California, the jury is instructed that even if the Plaintiff has not presented any evidence of damages, the jury MUST award damages if the elements of defamation are met. These are called presumed or assumed damages, and are simply a recognition that one’s reputation has value. Unfortunately, from the plaintiff’s standpoint, the jury instruction goes on to state that “damages can be nominal, as little as one dollar.” Thankfully it has never happened with any of my clients when I am representing the Plaintiff, but I have seen $1 judgments in defamation actions.
Anyway, when a Plaintiff announces that they have no proof of damages, it just means they are rolling the dice on presumed damages. The client was certain that they were up to something, but I assured her that they were only going to seek presumed damages. I would, however, protect against all contingencies.
I probably should have seen a red flag when Plaintiff’s counsel fought so hard about the exhibit books. For the convenience of all involved, I include the discovery responses in the exhibit books. They are not actually exhibits, of course, but if I ask the opposing party a question, and the answer given is contrary to a discovery response, I can just direct the judge to tab 37, page 6, line 22, for the discovery response. The judge already has the response in his or her copy of the exhibit books, as does the opposition and the witness. Much better than pulling out the response, handing it to the clerk to give to the judge, having the opposition say they do not have a copy, sliding over my copy so the opposition can follow along, etc.
Opposing counsel was so vehement that the discovery not be included in the exhibit books, that he refused to sign the joint exhibit list on that basis. No problem; I just filed a unilateral exhibit list.
I brought a motion in limine to exclude any evidence of actual damages. It was a bench trial, so the judge took my motion under advisement, stating he would wait and see if the Plaintiff indeed tried to present such evidence.
The case was going fine, until Plaintiff’s counsel asked his client about the company’s income. I objected, arguing that since Plaintiff had attested that he had no proof of any damages, he could not now testify to his company’s income. The income had no relevance unless Plaintiff was intending to make some before and after analysis, and if so, then Plaintiff needed to disclose that information in discovery.
Plaintiff’s counsel had indeed been laying a trap, albeit a very ill-conceived trap. He argued that the discovery responses were entirely correct; he had no evidence of damages. But he interpreted the question to be seeking, say, a profit and loss statement reflecting any loss of income. Nothing like that existed, but of course his client was still free to verbally discuss his prior income, and the trier of fact could determine the damages.
The judge took probably 30 minutes, going through all the discovery responses I directed him to, which were all conveniently in the exhibit book in front of him. He sustained my motion to exclude any evidence of damages, and held the Plaintiff could not discuss the company’s income.
So what have we learned?
Probably nothing. I just like telling war stories. But I can offer the methods I use to deal with the “they are up to something” blues.
It is an irrational fear, that is actually heightened by the fact that the opposition’s case is so weak. Clients assume that no one would spend the time and effort on a bogus case or defense. They don’t understand that sometimes the defendant just wants to kick the can down the street, in order to put off the inevitable.
My gas station story is an example of a frequent occurrence. Crooks will be crooks, and the client is just one of a long line of victims. The defendant just plays the odds. If they rip off ten people, perhaps half of those won’t have the resources to sue, or will settle for less than they paid to the crook. When they finally encounter a victim who is willing to fight the good fight, the crook just needs to buy some time in order to get an infusion of cash from the next victim, so they can pay off the prior victim.
But try using logic to overcome someone’s fear of snakes, or heights, or Kenny G. To the client, your calm logic is just further proof that you don’t understand. What to do?
Get the client a second opinion.
I have had good luck turning clients around by bringing in a second opinion. I tell the client to hang up with me, and immediately call my partner for an untainted view. The client may be harboring some belief that I just want to be done with the case, that I have fallen into the opposition’s web of deceit. Those two concerns are eliminated if my partner comes to the same conclusion on how best to proceed, even after the client has presented the case in the best possible light. As a bonus, my partner is female, and clients are often more open to her maternal approach as opposed to my drill sergeant method. I recently had another client who would not agree to settlement that included everything we could possibly achieve at trial, but a conversation with my partner turned her around.
Empower the client.
Since the client is convinced you are failing to see the hidden tactic of the opposition, you need to give them the power to respond to the unseen threat.
Continuing with my phobia examples, get them to move toward the best solution, while still having control. “How about if I play a Kenny G song at zero volume, turn it up slowly, and at the moment you feel uncomfortable, you can turn off the stereo?” That was the solution I used with the client who wanted to dismiss. I was able to keep the action alive and ultimately prevail, by showing him that he would maintain the power to dismiss.
Run the finances.
Trial and the time right before trial are typically the most expensive parts of litigation. As shown above, the “they are up to something” mentality can cut both ways. If the opposition wants to go to trial, they must know they can win, so we should settle. If the opposition wants to settle, then they must know they can’t win, so we should go to trial. In the latter case, the client becomes convinced that the trial will reveal a previously unseen source of damages. In this case, a financial reality check can be effective.
“OK, so you are convinced that some new form of wrongdoing will be revealed, and damages will follow. We could settle now and eliminate any uncertainty, or we can go to trial in the hope of some additional damages (assuming our pleading will allow for these unknown damages). This is a jury trial, so assume 48 hours of actual trial time, and another 48 hours for all the last minute preparation, such as jury instructions, special verdicts, examination questions, etc. Is it worth $X to go to trial, under the assumption the trial will reveal more damages?”
If they still want to go to trial after that explanation, they do so with full disclosure.