Since my return to the private practice of law in late 2018/early 2019, I have noticed many changes since my last foray into managing client expectations as a lawyer in the mid-2000s. The reliance of everyday people on the information they obtain from internet, from social media, and from popular opinion, has resulted in a healthy dose of skepticism and, dare I say, distrust in once-trustworthy institutions.
I welcome comments from my clients about who I arrive at the opinions and advice I give them. I take no offence to it. I do the same when I speak to doctors, mechanics and other professionals. But I make it clear to them that my opinion and advice will be candid, and that I will not sugarcoat the truth. When I do so, they are often puzzled that I simply didn’t tell them what they wanted to hear, believing in the long-held mantra that “the customer is always right.” Sadly, the customer is not always right. More often than not, my customers are wrong, as they have obtained their background legal information about their needs in a piece-meal, haphazard, and unreliable manner.
This blog will be about the need for clients to hear both the good news and the bad news about their case, and that it does them no good to only hear what they want to hear. I don’t sell promises that I cannot keep, nor dreams that I cannot help them fulfill. I know some lawyers do that, but I truly hope it is a limited few. If I am meeting with a professional, I would want them to tell me the truth about my situation: my car needs a new transmission, my roof will need to be replaced in two inters at most, I better floss more often unless I want gum disease, or that mole on back is a growing concern that needs to be checked out now.
But I am not the only person who must be truthful with the client. They need to hear the reality of their cases not just form me, but from the judge who is conferencing them matter. I continue to have cases where, on occasion the judge does not necessarily tell a party the “hard truth” and, in doing so, they unwittingly give them a false sense of hope, that there’s a chance of success in their case when there really isn’t one. Even more prevalent, we need the client’s friends and family to be brutally honest with the person and tell them that they are wasting their time, their money and their well-being on a case that is very likely to not go their way.
Amongst my friends, we use the analogy of Jim Carrey’s hopefully romantic character in Dumb & Dumber (Lloyd Christmas), when told by his love interest that the chances of them ending up together is like “one-in-a-million,” to which he responds, “So you’re telling me there’s chance?” It’s funny in the movies, but not so funny in real life.
Advice From Lawyers
When I meet with a client, I complete an intake questionnaire with the client, to gather some basic information to allow me to give the client some initial advice and direction on possible next steps to take. But I tell them in the same meeting, in my follow up retainer letter, and throughout the case, that my advice will likely change over time, since I only have one side of the story at this point. I need to have the other side’s version of events, as I am sure that they will present their lawyer, or the court, with a very different version of the facts. Some facts will be the same, others will not.
As well, I need to do some “diagnostic testing” that we as lawyers use to ascertain a clear understanding of the case. This includes, but is not limited to:
- reviewing previous or proposed agreements
- reviewing previous or proposed court papers/documents,
- obtain financial statements and other related financial disclosure from both sides,
- perform title searchers, corporate searches, etc.
This is the part that usually stumps clients, or otherwise draws their ire. I explain to them that if they called a doctor, and simply spoke to them over the phone, coughed a few times, could they expect the doctor to properly diagnose them? No. Further medical testing is likely required, such as basic temperature check, blood pressures check, blood work, urinalysis, and other such procedures. Even after I have the information I need, I usually reserve the right to offer them a definitive opinion until we have had a preliminary meeting with the judge at case conference. In most cases, it is at that point where I give the client:
- my legal opinion on their cases,
- the basis of same,
- the chances of success,
- what they can do, if anything, to improve or diminish their chances of success, and
- the cost/benefits to them pursuing the matter further.
Most clients have a pre-conceived idea of their case – usually from their family, their friends, and from their own internet research. If what I tell them meshes with that idea, we move forward. If it does not, they go elsewhere, or they decide to soldier along and see if their chances can get better. I welcome them to get second, even third opinions. Again, I take no offence. But I do warn them that there are some lawyers who will take the position that they will argue the client’s case to the “nth degree.” Sounds nice and noble in theory, but in practice, I think it is a dereliction of my ethical duty as a lawyer to a client to give them hope where none exists, and to charge them tens of thousands (if not more) to pursue an unrealistic result.
Once again, a caution to such clients. You will always likely be able to find someone who will tell you what you want to hear. Itas business safter all, and some lawyers will craft their opinion accordingly to maximize their profit. But as I have said in other blogs, if you spend well over $100,000.00 in legal fees to try and gain and extra weekend of parenting time, joint decision-making, of a slightly reduced support award, ask yourself – was it worth all that money, that time, that pain, and that hurt that such prolonged cases generally have on the parties and on the children, as collateral damage? To some it is, but once again, it is a small group that can say so.
As such, it is my practice, and the practice of a few lawyers whom I respect and to whom I refer friends and family (when I cannot help them), to speak candidly with the client, to tell them whether or not they have a good case, to settle where a settlement achieves the best result for the client and the other side, as opposed to a win/loss roll of the dice. I was never one for gambling, and I tell my clients that I will not gamble on their legal fortunes, but they are free to do so, if they so choose. But just remember, in all gambling scenarios, the odds are usually not in the gambler’s favour. And as a lawyer, I should not come out financially ahead of my client when the case is over.
Opinion From The Judge
As I set out above, I usually wait for an opinion forma judge at a case conference before I can my client a more definitive opinion on the chances of success of their case. We are blessed with some spectacular members of the bench – brilliant, creative, well-spoken, thoughtful, and caring. But sometimes, it is that “soft skill” that can unintentionally lead a few judges to offer a client a morsel of hope when really none exists.
As lawyers, sometimes we discover after the exchange of initial court documents that our client’s case, or the other side’s case, is somewhat lacking, and we tell them that the judge will likely corroborate our concerns about the weaknesses of the case at the conference. More likely than not, some of the newer, less experienced judges, in an attempt to be fair and impartial, may try to “soften the blow” and make an innocuously comment (positive or neutral) about a legal issue that is patently negative for one of the parties. In doing so, the party in whose favour this comment is made will interpret it as “the judge thinks I have a chance.”
I see this usually in cases where a parent is seeking joint decision-making or 50/50 parenting time, but the facts bear out that one parent has not seen the child in some time, or where they are a parent who works 80 plus hours outside the home, and only sees his kids when they are tucked into bed, and at Sunday dinner. I also see it where a client has a child from a precious relationship to whom he/she owes support, but also has 3 or more children with his new partner, and that parent claims they have no money to pay for the first child. Most judges will tell them the honest truth that a parent cannot prefer the second family to the first, but occasionally, you have a judge who may suggest that, in fact, you can’t get blood from a stone.
Obviously, I am taking liberties with the facts to be presumed, and I full acknowledge that there are cases where the facts are muddled and the law is not clear. Those cases need to be flushed out more. But my point is that where the law is clearly on one party’s side, and not on the other party’s side, we as lawyers, and the clients themselves, need the judge to tell it the way it is, to rip off the band aid, and to not encourage the client to pursue a lost cause. To do otherwise simply and needlessly prolongs the eventual pain and suffering that the losing party is certain to endure.
Family and Friends
Perhaps the greatest perpetrators of hope in family law cases comes from a client’s family and friends. They are not part of their legal team per se, but rather, they are the person’s emotional support, their confidant, their “foundational rock,” who has gotten them through the worst ordeal they could imagine. In the creation of this persona, the client has transformed this person into a mythical creature, one that can do no wrong, cannot help but steer them in the right direction, and who certainly has the wisdom and insight to know how this case is going to turn out for them.
Sadly, as helpful as this person, or persons, may be, they may have provided wonderful emotional support, but they are too emotionally close to the party that they cannot be objective in telling them to listen to the professional. I have seen in countless times over my 30 years – the trusted third-party intermediary – it can the person’s mom, dad, brother, sister, adult child, best friend, new romantic partner, etc. They have been wonderful in getting the client through the darkest days and helping them with services they and supports they need to cope.
But a few of them get a “complex” and see their sense of importance dip their toes into the legal pond. They tell you that they’ve read the law, that they have researched the matter on the internet, talked to others in chat groups, and they know people who have gone through this. Perhaps they themselves have gone through this. But it does not make them lawyers, or even proper legal advocates.
As bright as I know I am, I am not a doctor, a nurse, a pharmacist, or healthcare professional to treat myself based on a limited amount of knowledge. I know the limits of my basic knowledge, and when I need a professional, I consult a professional, and I hire/pay for a professional. But in today’s world, in a society that promotes “do-it-yourself” services in books, articles, online videos, and other sites, some of us think we can do more than we can, and when we eventually fail, as more often than not we do, we have created a greater problem for ourselves than the one we tried to fix in the first place.
We need our friends and loved ones to help us through the tough times, but to have a sense of objectivity and common sense when we cannot see the forest through the trees. We do not do our friends and family any good in telling them they have a chance of success in a legal matter when, in fact, we know they do not. We want to spare their feeling, or prevent them from falling into an emotional abyss, but once again, in trying to cushion the blow, we create a false landing for them. Maybe we want them to see justice done, to see karma be played out, and see the other side suffer for causing our loved ones such sadness, heartache and pain suffer for their sins. But that is often more about vengeance, not justice. We need to see “the bigger picture” for our friends and family, and help guide them through the turmoil, and not to venture straight into it, where there may not be a simple path from which to escape until further harm is done.
Conclusion
I hope this blog has been helpful for you to read, whether you are a lawyer, a client, a potential client, or a support person for a client. The journey of a family law matter can be an easy road to travel, or it can be a nightmare traffic jam in the middle of a busy multilane highway that is at a standstill. We often cannot know the road we need to travel, or long it will take, or the toll it will take on us. But if we are guided by knowledgeable people, those who truly have our best interests at heart, we will get to our destination in time and in one piece.