By Dr. Ken Broda-Bahm:
Here's a "don't do that" lesson. After calling his client and her husband "toothless cooties," in what he thought was private communication, well-known Colorado plaintiffs' attorney Chad Hemmat suffered a $2 million judgment (including $1.5 million in punitive damages) when the client took him to court over inadequate representation and, the former client claimed, for undervaluing the case and pressuring a quick settlement. The story, covered in the paper edition of the January 21st Colorado Law Week and in our city paper, Westword, caught my attention because it brings up a common dilemma for active litigators. No, that dilemma is not how to represent toothless cooties (and I have to admit that I'm not really familiar with that expression...but it sounds bad).
The dilemma is how litigators ought to take care in delivering critical messages to their clients. You see, that was Hemmat's defense for the statement. While he admits that he chose his words poorly (but colorfully), his claim in trial was that he was just frankly evaluating how his client would be perceived by a jury. "You want me on that wall," he argued, "You want me trying to decide how you will be portrayed." And that is clearly the right role for a trial lawyer. But, even without the colorful language, it is a role that needs to be approached with a great deal of care. That is because there is a natural conflict between the lawyer's role as an advocate ("I believe in your case and I'll be your champion...") and the lawyer's role as a counselor ("...but here is the reality of what you're facing at trial"). The jury delivering the recent verdict against Hemmat, for example, probably had little trouble concluding that anyone who would communicate with such apparent disrespect probably wasn't a zealous advocate for his client -- a perception likely reinforced by the fact that the client received only about $20,000 (compared to the firm's $27,000) in the settlement. Still, it is easy to see that the client's dream of a multimillion dollar jury verdict may have been just that, a dream. So how does a responsible attorney convey that reality?
There is no doubt that it's a litigator's job to realistically assess the case and, when the situation demands it, to deliver bad news to the client. How that assessment is crafted and communicated, however, is where the care comes in. Often outsiders, like me and other litigation consultants, can play an important role in providing another voice allowing the lawyer to simultaneously get the message across while staying credible in the client's eyes. This need applies across a variety of situations, but in this post, let's briefly consider three.
Three "Handle With Care" Client Communication Moments
It is possible to think of even more hair-raisingly difficult conversations with clients (e.g., telling a client that you think they're lying), but here are a few of the more common settings where a responsible litigator is required to be a channel for bad news.
1. "You Will Not Come Across Well"
A witness, a party, or even an expert thinks they have it covered. They think that the jury or judge is going to understand and accept their position. But the seasoned litigator knows there is a problem. It may be a bad fact, or it may be a poor communication style, but they know that there is going to be an obstacle at some point down the road. In Hemmat's case, for example, he may have realized that a suburban jury in Colorado's Arapahoe County would likely see his clients as relatively unsophisticated (that is the best spin I can put on "toothless cootie"), and potentially not deserving of a large monetary award. But that is an assessment that can be objectively verified. Coming from an attorney, the client may see it as an honest assessment, or may see it as an admission that the attorney sees the case as unimportant and doesn't want to invest time into it. But coming from an experienced trial consultant, the assessment can have greater face validity. Coming from a mock jury panel, it will have even more. Mock jurors might not come up with an expression as original as "toothless cooties," but then again, they might.
2. "Your Case Is Not As Strong As You Think It Is"
As clients move through all of the stages leading up to litigation -- the event itself, the discovery, the case preparation -- a mindset can gradually take hold that encourages parties to overestimate the good and underestimate the bad. As we've written before, that can lead to a level of confidence that is at odds with the true risks that litigation poses. Here, at least in the explanation he offers, Hemmat is right: Clients do need to understand that it is the attorney's job to see the worst in the case and to find ways around that. But here, even the attorney can become part of the favorable group-think. By bringing in a second pair of eyes in the form of another attorney, a consultant, or a mock trial panel, the litigator is not only increasing the likelihood of discovering a case's downside, but is also making it easier and more credible to communicate that bad news once it is discovered.
3. "You're Going to Trial (or Settling) For the Wrong Reasons"
If problems of perception are tricky to address, then problems in motivation can be all the trickier. We know that parties can be motivated to reject a reasonable settlement and proceed to trial anyway for a variety of reasons: revenge, public vindication, psychological closure, or effort-justification ("we've come this far..."). Sometimes, as we've noted, attorneys should consider these reasons beyond just the cost-benefit economic calculation of settlement. But once those reasons are considered, a decision to proceed to trial might still be destructive and unwise. And so can a decision to settle. This is the point where litigators truly need to set their advocate hats aside for a moment and become counselors. And the first thing for the counselor to realize is that motivation matters. An outside voice at this stage can also help clients understand their motives and frame their options. For example, instead of just asking trial consultants for trial preparation work, ask them for a dispositional assessment of a case: In light of current status and offers, should the case proceed or settle? Working in the context of scores of litigation matters every year, experienced consultants do develop a good sense of cases that should go to trial, and cases that should be resolved. It ought not be the final word, but it can be a good source of information.
Going back to Mr. Hemmat, in addition to taking greater care with his email, he is also arguing for a new trial and claiming that the inflammatory message should not have been admitted. That may be the right path, but what the firm, and all firms may need even more, is a good process for making sure they're providing clients with a realistic and credible understanding of their case's prospects, cooties and all.
Other Posts on Client Relations:
- Make Sure Jurors Tell You How Bad Your Client Is
- Sticks and Stones May Break Your Bones, But Calling Your Client Names Could Actually Help
- Don't Be Faceless
Photo Credit: amboo who?, Flickr Creative Commons