One of the most thoughtful and reflective SRLs to have worked with NSRLP over the last three years, Derek Parry (see his story here), made the following astute observation in a talk to Windsor law students Bring a SRL to Law School Day about where things often begin to “go wrong” in communications between lawyer and client.
“When a potential client, involved in a divorce proceeding or some such case, first meets with you, they are often consumed by a whirlwind of emotions – a whirlwind you are not trained to handle but which strongly determines their objectives in the legal proceedings. If you do not resolve the difference between your client’s urgent emotional needs, and what is legally possible to achieve, you are on your way to creating … immense frustration all around.”
Derek has his finger on something important here. In interviews over two decades with the clients of legal services, I have often heard disillusionment set in after an initial euphoria in the first few meetings, as the reality of what the legal system really can achieve – within a reasonable timeframe and budget – starts to set in.
At around the same time, their lawyers begin to complain that the client is “unrealistic”, “overly emotional”, or even “unreasonable.”
Yet it is unrealistic to imagine – as Derek points out above – that a legal action will result in a full emotional resolution of the issues that brought the client to the lawyer in the first place. A good behavioral outcome – for instance, a fair divorce settlement, a sum of compensation for injury or loss – is probably the most that a lawsuit will achieve (Mayer, 2012). In essence, a successful legal action produces changes in outcomes – it does not change how people understand the conflict or the relationship between the parties, or enable emotional closure.
Some clients conflate these expectations, are not disabused of this by their lawyers, and come away disappointed. While clients have a responsibility to be realistic about their hopes and goals, lawyers have a responsibility to clarify and shape that realism.
A lawyer/client communication feedback survey
Later this month, as a part of our present focus on Communications, NSRLP will be launching a Lawyer/Client Communication Feedback Survey. This short survey asks clients 5 questions about the effectiveness of communication between lawyer and client, including how far their lawyer understood and met their needs and expectations (much as Derek describes above).
We hope to encourage lawyers in both larger and smaller practices to consider collecting this information from their clients at the closing of the file. The responses will be private to the firm, with NSRLP providing the short form, and some assistance, on request, with posting the survey electronically.
We believe that it is very valuable to collect this type of feedback from clients. We shall be promoting the NSRLP Communication Feedback Survey with the endorsement of a number of influential legal profession champions.
All of us benefit from building into our practice ways to reflect on what we do – customarily, habitually, or even experimentally. Moreover the focus of this short survey on communication allows clients to say what may be harder for them to say in person – such as, I am not sure I really understood the explanation you gave me about billing, or, I don’t think you really understood what was most important to me. Collecting this feedback from past clients affords insight into what did and did not work well for this client (we also include a box for the client to tick if comfortable with identifying him or herself for future discussion at the lawyer’s discretion).
Listening and responding – or phony consultation?
Working as closely as we do with SRLs and former clients, it is easy to imagine the skepticism of some clients about spending time on such a survey. After all, providing feedback is only meaningful if you believe that something useful will be done with it. And for a number of reasons it is not surprising that many people who use the legal system, represented or not, doubt that feedback will be taken seriously.
The public feedback we get at NSRLP indicates that the legal establishment has a poor reputation for listening to and taking seriously client complaints filed with provincial Law Societies, and even more so, with the Canadian Judicial Council (this will be the subject of a future blog).
Outside the practice of law, we can all recall a failed attempt to solicit our feedback that fell flat because we did not believe that the effort to collect our opinions was credible (recent messages in my inbox titled “Air Canada listens” fall into this category for me personally). We each have our own experiences of “fake” consultations where we either declined to participate, or did so and regretted the waste of time later.
The motivation for gathering the feedback may be sincere – but if there are real structural impediments to doing anything with that feedback, or if no one has thought through what might be done to respond to the feedback, the whole effort will fall flat (and risks creating even more distrust in the process).
The client service commitment at the heart of communicating effectively
If lawyers are to take the communication challenge outlined by Derek Parry seriously, and avoid disappointing client expectations, they must first overcome a tendency in the practice of law to paint the best possible picture in an initial interview – perhaps because of wanting to be upbeat when faced with a distressed person – and from there let the client down slowly and incrementally.
One answer is to listen to clients in that first meeting more carefully and perhaps longer, to communicate the limits of legal action more clearly, and to manage expectations explicitly. The questions in the NSRLP communication feedback survey amount to an assessment of this throughout the handling of the file (including, “My lawyer explained both what they could and what they could not do for me”).
But what if lawyers benefit from obfuscating expectations at the outset? Isn’t it easier to establish a relationship with a client if one is initially ultra-sympathetic and compassionate but does not point out that emotional needs are rarely met by a wholly legal outcome?
Don’t lawyers want their clients to believe, after that first crucial meeting, that they can produce ponies and sparkles, and that if their clients stick with them, all their troubles will be over?
Isn’t pointing out what one cannot do to help a bit of a downer, as well as a poor marketing strategy?
And don’t clients want to believe that their lawyers (or financial advisors or real estate agents or therapists) can solve their problem? Do they end up believing this because this what they want to believe, rather than because they were deceived by their advisors?
Or – can the 21st century consumer be trusted with the “bad news” that every professional role has its limits, and then determine whether they still want to purchase assistance?
The values question at the core of genuine communication
Anticipating the launch of our lawyer/client Communication Feedback survey in the next few weeks, let’s start by asking the following question:
Can the legal profession commit to doing their best to ensure that their clients do not harbor erroneous expectations of what the legal system is able to do for them (and at what price)?
Because no matter how effective lawyers might become at communicating with their clients, the core of their message has to be an honest and practical one.
And however well lawyers may feel they do this, genuine feedback is critical to improving services.
Yup, pretty bang-on, really (except for the efficacy and seriousness of the complaints process) – as a Family Lawyer, as a human being, when you get that first rush of sensory input (called the “initial meeting”) – your first reaction is generally – “That rat-bastard, I’m going to make him (or her) pay… Come let me protect you and your knight in shining armor is about to battle the dragon!” Even now, after 30 years since law school, I have that urge.
However.
I resist.
I explain to my clients that, firstly, I highly recommend they obtain counseling to deal with their emotional difficulties, because I need them at their highest level of functioning to engage in effective resolution. I normalize “crazy” – I’ve been divorced, I’ve sat on the other side of the desk – it’s normal to feel out of control and afraid.
Then I explain how the more the conflict continues, the more I get paid – so they should seriously consider the cost/benefit of litigation vs. settlement accompanied by the inherent uncertainty of outcome via litigation.
I explain the my client that THEY – not me -determine the course of their matter. Within the bounds of ethics and law, I will advise, but not control the direction of the file – THEY will.
Two great outcomes:
a) Client is not treated like a child, is respected, and allowed to actively control their own direction; and
b) I sleep very well – I do not feel stressed about outcomes, because well, the client chose the course of action with (I think) good advice and I did not “adopt” their problem – I listened, had empathy, but at the end of the day – handed responsibility to the client for the outcome.
So – to me it’s not only about being honest and open about limitations of the system – it’s about a more sane and relatively stress free practice, where I understand that I haven’t created the problem, and I can’t fix it – I can do my best to empower my clients to reduce cost and risk – but give them the very real reigns to determine THEIR choice of action.
30 years later, I love my job.
Observing all the various factors that entail the total experience of what is presented in court, i.e. life in its myriad forms of trial and tribulation, it behooves us to acknowledge the individual talents required during this process. Lawyers are legal counsel, knowing about the legal process. They are by trade and nature not in to counselling mental well-fare. Psychiatrists and their likes deal with those issues. Why this has not been addressed yet, I’ll never know.
In litigation, when dealing with business and contracts, feelings have zero relevance to the issues. That’s why I have recommended that contractual law be dealt with by a savvy software program; keep people out of it; it’ll be quick! The words say what they do, individuals put their signatures to it! Let the machine interpret who is right. On the other hand, in marital/ divorce law, with off-spring, all is about feelings. When love turns to hate, blind rage runs affairs. Objectivity is nowhere found.
I suggest before there is any marriage vow, there is a clearly defined, signed contract. When for the 50% of those marriages the contract needs to come out of the drawer, feed it into the machine, and voila, there are your answers, like them or not, Mr. + Mrs!
Problem is, this would eliminate a lot of present commerce. There’s the rub.
I appreciate you bringing up this subject. As a lawyer, I sincerely think that good communication is crucial in all professions because it builds trust, successfully conveys a message, and helps the listener grasp the meaning and purpose of the message. Write more articles like this!