Communication Skills Part III: Avoiding Mistakes in Communication
By: Claude Ducloux
Board Certified, Civil Trial Law and Civil Appellate Law
Texas Board of Legal Specialization
Director of Education, LawPay
For the third installment in our communication series, we will highlight some important habits that will help you avoid mistakes in communication.
Making Predictions “Off the Cuff”
A very dangerous situation presents itself whenever a client asks you to guess as to the outcome of a future event. Why? Because the client rarely will remember the “construct” of your opinion, just the best possible outcome predicted, and will hold you to that fictitious prediction. Your “guesstimates” frequently rely on unproven facts — facts often suggested by the client. The best advice I can give is to scrupulously avoid guessing about the future. The best I will do is to say “My job is to do the best I can for you, and based upon the facts I know today, [e.g., I am comfortable that we are on the right track].”
Civility in all Communications
Despite the nastiness you see on lawyer TV shows, every lawyer has a duty to attempt to keep all communications civil. Civility is a process. It avoids unnecessary confrontation and it relies on the Rule of Law. At this point, your eyes are glazing over thinking, “blah blah Rule of Law.” But let’s talk about that.
What is the “Rule of Law?” Simply put, it is society’s social compact to resolve issues within frameworks and rules – to observe neutral methods to achieve best outcomes based upon fairness, process, and opportunity to present facts. We choose to live in this society rather than to allow money, brute force, or guns and swords to dictate outcomes. That is exactly why we need to preserve it. Our first step in that preservation is civility.
Civility depends upon communication; that is, keeping in touch and responding. Civility requires respect for all the participants: your clients, opposing counsel, and the judicial system. The most effective way to serve your client generally is maintaining a productive and problem-solving relationship with the opposing counsel. In this regard, the words you use matter. Thus:
- –“How do we solve this?” works better than “I demand you do this.”
- –“When may I expect the documents?” works better than “Once again you blew by the discovery response deadline.”
Always remember, you should never expect better treatment yourself than you are offering the other side.
Finally, remember how dependent you are on the good will of the other participants of the legal system: clerks, administrators, and other state, county, or city employees who will review or handle your work. Be kind, gracious, and humble, appreciating that those people often have stressful jobs for unappreciative citizens.
Controlling the Narrative
One of the most effective ways to get yourself in trouble is to not respond to a communication from your client that changes a fact or incorrectly reports a condition. If a client reports that you promised to do something for a given amount, or in a given length of time, and you fail to respond and correct the client, that will be seen as a tacit admission that the client is right.
Remember, you have the fiduciary duty to the client, and because of that, the surpassing duty to keep the record straight. I have handled scores of grievance complaints, and it is devastating to the accused lawyer to show a series of correspondence from the client for which there was no reply. Don’t risk it. Practice defensively when setting the record straight.
As old fashioned as this sounds, please remember that a client will make an appraisal as to competence and confidence by how you present yourself. Bad press affecting you and your practice undermines confidence. If the negative images remind a client of how he/she is being treated, it is likely that client will change counsel.
Communication on Billings
If you use a billing system or simply bill by narratives make sure that you are smart. First, your accuracy in billing increases exponentially when you record time immediately, or as close to the event billed as possible.
Here’s a short list of good billing habits to always keep in mind:
- –Remember your audience: use words your client will understand if you expect to be paid.
- –Again, keep in mind that your bills may be subject to third party review in the event you are seeking reimbursement in court, or the client complains. That means you are unlikely to be able to redact, and therefore reveal no client confidences, but add enough information so a court or committee can evaluate what you did.
- –Add free events: “Called Bob to remind him of pre-trial on [date]–.2 hours–NO CHARGE.
- –Be prepared to defend every event you are billing.
Now, here’s a short list of bad habits:
- –Using meaningless techno-legal babble: “File review – .3 hours”
- –Overbilling: “Draft Original Petition for Divorce – 1.5 hours” Really?
- –Making your stapler a profit center: do not bill for office supplies. You’re a lawyer, clients expect that you’ll have paper, paper clips, and staples and you didn’t have to run out to the office supply store just because they hired you!
To distill what we’ve discussed over the last three articles, always remember that it is your responsibility to appear professional, knowledgeable, and collaborative. Only sign-on to represent someone when you have a meeting of the minds as to reasonable expectations. Communicate in a way that connects you as a team member for your client’s reasonable goals. Finally, treat every person, firm, agency, and interest with respect and courtesy, observing your duty of civility. When stress arises, be “the adult in the room” who can control the emotion and act civilly and responsibly.
If you follow these rules, you will likely have clients who will be friends for life and colleagues who will refer you more business because they have had a good experience working with you. In other words, you will be a success.
In addition to exercising proper billing communications, it’s important to make sure you are taking advantage of the very best payment solution for your firm. LawPay is proud to be the preferred payment partner of more than 35,000 law firms, and is the only program endorsed by 46 state and more than 50 local bar associations. LawPay’s proprietary technology, developed specifically for law firms, correctly separates earned and unearned fees, giving your firm peace of mind that credit card transactions are always handled correctly.
Are you ready to update your attorney-client paperwork for the digital age? Download our free e-kit, 5 Forms to Modernize Your Attorney-Client Agreements, which contains templates to get you started.
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