Introduction
As a teenager growing up in the early 1980s, one of my favourite bands was Spandau Ballet. A less popular song of theirs was entitled “Communication,” and in the refrain, I get the title to this blog: “Communication let me down, and I am left here.” The song was about the fracture in a relationship between two people in love, and the failure of communication that doomed them.
As in all aspects of life, people are better off when they can clearly communicate with one another, and problems develop when communication breaks down. The same is very much true in family law matters, with the added perspective of there may be such a thing as “too much communication,” and consequentially, too much talking and not enough listening to one another.
This blog will focus on the importance of communication, and not just between the lawyer and the client, but the lawyer and the other lawyer, and the lawyer with the judge. As I alluded to above, it is not enough to just say what needs to be said, but to listen to one another, to make sure what is said needs to be said, and is properly heard by the intended audience. There are traps and pitfalls into overcommunication and into poor communication, and I will address each of those as well. In doing so, I will give you my thoughts on what I personally consider to be hallmarks of effective communication. Not everyone will agree with me, and that’s ok, too.
Communication Between the Lawyer and the Client
According to the Law Society of Ontario, the majority of complaints that clients have about their lawyers is the lack of communication. For the benefits of my fellow lawyers, let me remind all clients of this universal truth: lawyers are very busy, and we only have so many hours in a day to deal with our clients. We must prepare electronic paperwork, prepare for court, attend in court, prepare and review letters, send and receive emails and texts, and make and receive phone calls. All of this takes up our time in a given day. And depending upon a lawyer’s caseload (as little as 50, or as much as 200 clients, at any given time), you can appreciate how our time with any one client is limited.
As a result, I believe it is important for lawyers to manage a client’s expectations on when we will return their calls, and how we will do so. Generally speaking, lawyers will respond within one or two business days, and we usually respond to a client in same the manner we received the message – email, phone or text (some lawyers will not address text messages). If a client’s call or message is very urgent, i.e. it must be addressed the same day, we instruct our support staff to triage the matter and bring it to our immediate attention. But be weary of going to the well on this on a regular basis. There is a difference between what a client thinks matter is urgent and what a lawyer knows is not. If you keep saying a matter is urgent, but it really isn’t, you just might find your messages being returned later and later by your lawyer (think of the story of the boy who cried “wolf” once too often).
To make clients understand my communication policy, I use the analogy of driving a car, and having the gas tank filled up. Let’s pretend a lawyer’s time and the retainer (the cash you gave them, or the legal aid certificate they accepted) are the gasoline. Every time you call, text of email, or even pop in the office, that consumes gas. If the matter is urgent and more time is needed to address the urgency, the gas in the tank starts to dwindle at quicker pace. If the matter was not really urgent, you just wasted gas that could have been used for something more important, like a court date or preparing settlement documents. If you regularly call your lawyer to give them information, or to ask them for something, they will charge you for their time to address the matter. It’s what we sell – our time and advice. Both a client’s retainer and a lawyer’s time are finite, and once it is used up, it is costly to “refill the tank.”
How can lawyers make a client understand this? We must explain it to our clients, and explain it to them again and again. Personally, I set all of this out in my initial retainer letter, and in subsequent reporting letters as needed. In doing so, I hope to manage my client’s expectations. As my services are provided and the retainer is used up, I remind clients to make the best use of their time and their retainer, and to only contact me if it’s necessary. Otherwise, they will be expected to refill the tank sooner than they expected. This is why many clients run afoul of limited cash or LAO retainers, because they contact their lawyers when they are angry, sad or confused. When we listen to a client under these circumstances, this takes up our time and your retainer, and it’s to perform functions that we are not really suited to do. With respect, I must remind my clients that:
- I am not their best friend;
- I am not their counsellor; and,
- I am not their therapist.
In saying so, although I am very empathetic to a client’s situation, my time and their money is not best used up being a friendly shoulder to cry on, or an ear to listen to their complaints.
But, having said that, some clients need to be told information in different ways. A common mistake a lawyer makes is simply putting things in writing. That’s not enough when a client has a language barrier, a cognitive impairment, a substance abuse issue, or other concern that may make it difficult for them to understand what you have written them. Some clients may need you to call them and explain things to them over the phone, or over Zoom, or if need be, in person. An excellent communicator will make and take the time necessary to ensure their client understands what happened, what is happening, and what needs to happen, in manner that the client will know the facts and be able to instruct the lawyer accordingly.
Communication Between Lawyers (or Between Lawyer and a Self Represented Party)
Much of the same comments that I referenced in communication between a client and a lawyer can be extended to communication between lawyers, or between a lawyer and self-presented party. Be clear, be concise, and manage expectations.
As I wrote in my last blog about professionalism between lawyers, client are often taken aback that lawyers are polite, extend pleasantries and are casual in their communications with other lawyers. The smaller the community, the more likely you are to see this approach. We have to deal with many of the same lawyers on multiple files over the course of a career, and it does us no good, nor does it do anything for our clients, if we have a reputation for being rude, short, or are lax or simply ignore other lawyer’s communications (not returning phone calls, letters or emails). In extreme examples, a lawyer can be called to answer complaints by the Law Society of Ontario for failing to effectively communicate with other lawyers.
But at the same time, an experienced lawyer can also identify the traps of some over-zealous lawyers who recognize that a client has hired you and is of limited means (whether by cash or by a LAO certificate). Some of these lawyers will try and take advantage of the fact that your client cannot afford to rack up a big legal bill, and will inundate you with constant demand emails, phone calls and/or letters, persistent requests for information for their client, threaten urgent court proceedings if their demands are not met, or even threaten to report you to the Law Society if you do not get back to them when they expect you to.
So, how do we address this kind of lawyer? First of all, I am happy to say that this type of lawyer is on the steady decline, as their shenanigans are no longer tolerated by the legal community practicing in 2023 and beyond. But they still exist, and just like in sports, the best defence is a good offence. A lawyer must address these tactics head on – do not give them any oxygen to exist. If the lawyer called you, call them back and let them know what your terms are. If they wrote you or emailed you, write them or email them and be firm but fair in responding to them. At no point should you lose your cool, even if they do so. Remind them that this is not personal to you, and any personal attacks will not be tolerated.
A common ploy that I have seen a few lawyers use on younger, less experienced lawyers is to write to them on Friday afternoon (seemingly always on the eve of a long weekend) and demand that you/your client address their client’s concerns by 5:00 pm. The “threat” is usually that if this does not happen, they will file an urgent motion in court for the next business day (Monday or Tuesday), and seek costs not only against your client but against you personally.
So, how to address this? Assess the situation. Is there any validity to what the opposing lawyer is saying? If there is, address it with your client. However, in the vast majority of cases, it isn’t urgent, and you should advise the lawyer of same. In doing so, politely but professionally tell them that:
- You have reviewed the matter;
- The matter is not urgent, despite their assertion to the contrary;
- You will review the matter with your client early next week; and,
- You will respond to them once you have a response to give them, and not any sooner.
A “legal bully” must be dealt with swiftly and judiciously. Give them an inch, and they will take a mile, over and over again. Do not let yourself or your client be bullied. Be your client’s protector from the injustice of others to the extent your can. Should the lawyer proceed with their threat, be clear with the court on how you assessed and addressed the matter. If the bully’s case had no merit to begin with (as many such threats lack any merit). Make this clear to the judge and ask that costs be addressed then and there. This will be uncomfortable, but it must be done.
The same points are applicable to dealing with the self-represented party. But given the latitude that some judges seems to extend to the self reps, I always let them know in an introductory email to them that:
- I am not their lawyer, and I will not offer them any advice or service (you’d be surprised how often they ask you to do stuff for them – usually small stuff – to bait you into doing things for them that they do not want to pay a lawyer to do);
- I will only address their inquiries of me or my client once per week;
- There will be no off the record conversations, even to try and settle a matter;
- I will not entertain their phone calls or pop-ins to my office; and,
- If I haven’t made myself clear enough, I insist that all my communications with them will be in writing.
Once again, “killing them with kindness” and being the utmost professional usually unsettles them. Don’t let their amateur tactics antagonize you into letting your guard down and doing your client a disservice. Go in, do your job, bill for your time, and close the file as quickly as possible.
Communication Between the Judge and the Parties
As with communication between lawyers, we are guided by our rules of professional conduct to communicate with respect and candour with judges. They were all former lawyers at one point, although many of them may have practiced elsewhere, and were not from the same legal community in which your currently practice. I presume that for all appearances before a judge:
- They have read the file and are prepared to address the issues at hand
- They expect you to have read the file and are prepared to address the issues at hand
- They know the law, but it does not hurt your case to ask them if they need clarification on any recent legal developments
- They like things kept simple for them (be quick and to the point)
- Speak only when spoken to, and listen at all other times
- Follow their verbal and non-verbal queues – if they want you to move on, move on; of they want you to elaborate, then be prepared do so (it’s not always what they say, but how their mannerisms speak for them)
- Be the utmost professional – be early, be prepared, be knowledgeable, and be gracious in victory or in defeat.
As the judge is the person who will make the ultimate decision, it does you and your client no good to pick a fight with them. You can disagree on the interpretation of a fac tor application of the law, but do not try to upstage them. If they’ve made an error, an appellate court can remedy it. If they are raising their voice, do not raise yours. Keep your composure, and remind your clients that you are there to speak for them, and not in addition to them. As I have had to remind a few of my clients, I am not “the opening act” for them where they get to be the “headliner.”
Conclusion
All of the tips, tricks and advice I provided in this blog have come from my personal experience. I try my best to be a strong and effective communicator, and I sometimes miss the mark with some clients. But I continue to offer my best – it is why they call it the practice of law: we are constantly practicing to be perfect. I regularly ask my clients if they understand what I am telling them, but then I find out that the client was too polite to tell me they really didn’t do so. To combat this, I rely on what a mentor of mine once told me: tell them what you’re going to say, say what you have to say, and tell them what you’ve said. And then confirm it in writing, too.
The flip side of this advice is equally true: be a strong active listener, and make sure you have understood what your client has told you. Repeat to them what you heard say. Confirm it in writing before you act, because once you act, it may be too late. Communication is a two-way street, and it’s important that you don’t find yourself stranded on a one-way street, going in the wrong direction.