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Introduction
Sherry M. Knowles, Esq. is the Senior Vice President and Global Head of Corporate Intellectual Property
for GlaxoSmithKline.
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Scott K. Reed, Esq. is the Chairman of Fitzpatrick, Cella, Harper & Scintos litigation practice group.
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The authors wish to express their appreciation to Thomas Smith, Senior Patent Litigation Counsel at
GlaxoSmithKline, and Vanessa Yen, Associate at Fitzpatrick, Cella, Harper & Scinto, New York, for their
input to this paper.
better appreciate the client perspective, speaking in a language the client understands, and
tailoring advice to inform the clients perspective.
a) Listen well
Given the many different responsibilities of both attorney and client, it can
sometimes be difficult to do something as basic as listen. Failing to attentively listen will
likely result in dissatisfaction between the client and attorney. Conversely, listening
properly can set both parties at ease and provide tools that are necessary to meet
expectations throughout representation.
On the part of the attorney, listening goes beyond simply noting the essential facts
regarding the legal issues, it is also how the attorney can gain an appreciation of the
clients decision-making perspective, understand the clients goals, and learn the clients
language. The more attentive the attorney is to these things, the more likely the clients
needs and expectations can be met.
focused on legal jargon. Additionally, if the client cannot appreciate all the contours of
the legal advice, the attorney may fail to tailor the representation to the clients
expectations, or worse, the attorney may undertake actions that are detrimental to the
client. There are several steps that the attorney may take to help avoid such pitfalls. One
possibility is for the attorney to research the clients legal and business experience in
order to gauge the clients sophistication. Alternatively, the attorney can inquire into such
matters at the initial meeting. The initial meeting is also an opportunity for the attorney
and client to gauge their sophistication in the other partys language. In general, the
attorney should adjust his language in the direction of the clients lexicon to ensure that
the client understands and is comfortable. This does not mean that complex issues must
be simplified; it merely means that language should be chosen to convey the complexity
of the issues in as clear a fashion as possible.
The initial meeting is also a forum for the client to explain expectations, problems
and worries; and for the lawyer to evaluate if those expectations can be adequately met.
While it may be necessary for the attorney to educate the client on relevant legal issues,
the initial meeting(s) may not be the best forum(s) for educating the client on nuanced
matters of the law. Of course, some discussion of general aspects of the law between
both parties can serve to reassure the client of their choice of representation. As the client
becomes more educated on the legal issues (and as the attorney becomes educated in the
clients lexicon), the dialogue will, and should, evolve.
Following the initial discussion, the attorney should not hesitate to inform the
client when a legal area is beyond the attorney, or the firms, expertise. In such instances,
it will help future relations if the attorney makes the effort to find the right expertise
within the firm, or if necessary, with another firm. To do this, staff the matter with a team
of lawyers whose backgrounds best match the project.
There are many opportunities for confusion and frustration between the parties,
but with some pre-meeting diligence, and attentiveness to language, it should be possible
to ensure that both the attorney and client fully understand one another during the course
of representation.
c) Attorneys: Tailor advising to the decision the client will have to make
When articulating options for the client, the attorney should consider the
perspective of the client, and seek to present advice in a structure that matches the clients
viewpoint. This may mean that risks and rewards are explained in the context of a larger
business decision that the client will have to make. It is helpful to remember that lawyers
tend to think about issues, authority, and legal conclusions, while business clients think
about the options available and the risk-reward calculus. With such clients, by providing
advice in terms of business choices and risk assessment, the lawyer is more likely to
provide advice in a form that matches the clients viewpoint.
a) Be Professional
explain the reason for delay. Explaining the reasons for change provides the other
individual with a feeling of partnership in a common endeavor. With that in mind, it is
important for the attorney to set realistic deadlines and budgets so that promises made to
the client can be delivered. Meeting these promises will allow the client to find the
attorney reliable and trustworthy both of which are necessary for a healthy attorneyclient relationship.
Further concerning budgets, part of being professional is being efficient with each
dollar. Large clients and cases may have seemingly unlimited budgets, but the clients
will be much more satisfied when representation remains focused on central issues and
does not inefficiently pursue minor or ancillary issues. The same consideration for the
budget of clients applies to expenses not surprisingly, even large clients are much more
content with a conservative rather than liberal approach to expensing. One area where
this may come up is with travel expenses. Travel considerations should be given careful
consideration, and is a topic that should be discussed with the client.
client will be kept in the loop. It also serves to keep both parties on par with how
responsibilities and tasks have been delegated, and of progress along the way.
One convenient form of conference scheduling is weekly telephone calls. Weekly
conference calls serve to keep the client up to date as to legal developments (e.g., via
status reports), give the attorney a forum to discuss future events, and serves as a regular
strategy session. If there has been little activity on a matter during a particular time
period, this is also an opportunity to discuss the clients satisfaction with the
representation, and to get advice on how the attorney can adjust representation to better
reflect the clients wishes.
Weekly conference calls should include all members of the legal team, and all
appropriate members of the clients team. This promotes comfort between all team
members on both the client and attorney side and is useful because the various team
members will be communicating with each other during the course of the relationship.
Of particular importance is that the meetings be run by the attorney who was hired by the
client. Clients are often frustrated when the attorney engaging them on the matter
changes during representation, or when they hire a senior partner but find themselves
represented primarily by associates. One common complaint from clients is that they do
not hear from the senior partner who was hired except during important events, such as
hearings.
Another common source of discomfort is when the composition of the legal team
fluctuates over the course of representation. If possible, avoid transferring attorneys on
and off the matter. The initial team, which was selected to best meet the clients needs,
should remain engaged with the project throughout, and should participate in the weekly
meetings. This can be difficult to accommodate as firm staffing demands change, but the
client will appreciate the sense of normalcy and security that naturally comes with having
a familiar team on hand, comprised of attorneys who are all equally familiar with the
matter.
Additionally, an agenda for the weekly conference calls should be distributed
ahead of time. Circulating an agenda in advance of the weekly conference calls ensures
that everyone participating has the opportunity to prepare beforehand and to engage in
discussion of the issues. It also gives team members the chance to supplement or edit the
agenda to accommodate new developments.
One additional piece of advice for facilitating smooth and frequent
communications with the client is to staff matters out of a single office. Not only does
this minimize complications for holding the regular meetings, but it can simplify
communications to and from the client. The overall result is an improvement in
efficiency, and less chance of a frustrated client.
The client is technically the decision-maker, although in practice, clients may pass
a good portion of this responsibility to the attorneys. While this can be convenient,
especially for busy clients, it does pose a risk that some decisions will not perfectly match
the clients interests. When that happens, clients invariably are frustrated at not having
been included in the decision-making process. To minimize the risk of this happening,
try to identify those issues that could instigate such response, and be sure to engage the
client in those decisions. A little bit of extra time communicating between the parties can
relieve a good deal of frustration and unnecessary communication down the road. This is
another topic that is best discussed early in the representation to ensure the attorney and
client have similar expectations.
One important way to keep the client adequately engaged in the decision making
process is to discuss strategy and points in advance of drafting any important or sizeable
briefs. This gives them an opportunity to provide input before the format and substance
of the brief has been established and before there is a time crunch. On that note, it is also
ideal to provide the client with a draft of any large brief enough in advance for the client
to be able to digest it and provide substantive comments.
d) Be available
One simple way to put clients at ease is for a member of the legal team to be
reachable by the client at all times. These days, the Blackberry allows continuous
connectivity for email, but the additional step of providing a cell phone or home phone
number is a simple way to set an anxious client at ease. Some clients will want the senior
attorney who was hired to be available, rather than an associate. Along the same lines,
many clients prefer being able to contact, and being contacted by, the same individual
each time, rather than different members of the legal team.
Being available, however, means more than simply receiving messages it means
being responsive. Failure by an attorney to promptly respond to a clients inquiry can be
a large source of discontent. A delay in responding can convey to the client that that
clients need is not a priority to the attorney, or that the attorney is avoiding giving the
client a negative status report. Even if there is nothing significant to report on the case,
and the attorney is busy taking care of pressing matters for other clients, it is a good
practice to promptly return emails, phone calls and requests to set the client at ease and
avoid any misinterpretation.
Email poses an additional issue worth addressing early in the representation:
when a client and lawyer send an email, each party assumes that the other party has read
it as soon as it is sent. But if no prompt response is sent, the sender may wonder if it was
ever received. To avoid this situation, and the concern that it may cause, one suggestion
is to establish an email response policy at the outset of representation.
Many positive results flow from thorough case preparation. One of the most
beneficial results of being well-prepared, from the perspective of client satisfaction, is
improved accuracy of advising and predictions. Clients will return to the attorneys who
are adept at reading the tea leaves. A corollary to this is that clients will not return to
the attorney with whom they have repeated surprises.
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When proposing various options to the client, an attorney should be sure to give
the client enough time to provide meaningful input this becomes all the more important
when some of the options are novel. If the client decides to pursue a route of action, but
that action is outside of the attorneys comfort zone, the client will be more willing to
listen to the legal assessment if it is clear that the attorney has considered the options
fully.
Conclusion
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2. Attention from and engagement of senior and other partners on the project.
3. Frequent communication between client and attorney that provide status updates and
involve the client in decisions. Regular meetings between the client and attorney
should be run by the attorney who was hired by the client. That attorney should be
engaged on the matter throughout representation, and not just at big events.
4. Staff matters with lawyers who have appropriate expertise.
5. The legal team should not change throughout representation.
6. Staff matters out of a single office. This allows for fluid communication between all
the attorneys working on the matter.
7. When the necessary expertise is not had by the attorney or firm, help the client find
appropriate representation elsewhere.
8. Be accommodating and open to new ideas and methods, especially when suggested
by the client.
9. Research and propose innovative legal solutions. Innovation in strategy is one
important way to add value to the case.
10. Discuss strategy with the client in advance of drafting important briefs.
11. Provide client with drafts of briefs enough in advance to allow the client to fully
digest and comment. Clients dont like surprises.
12. Prepare thoroughly to be able to provide well written sharp briefs. Cogent briefs will
highlight winning arguments and not waste space on losing arguments. Work written
by associates should be reviewed and edited by the partners.
13. Be efficient with each dollar focus on central issues, and not ancillary ones. Take a
conscientious approach with budgets and expenses.
14. Prepare thoroughly to be able to provide accurate advice and predictions. Be ready
and willing to alter legal strategy if the situation or jurisprudence changes.
15. A lawyer should represent the client with the utmost zeal.
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#8: Don't ask for money yourself. If payment hasn't arrived, lawyers shouldnt be the ones to
call the client about it. Instead, ask someone from your staff who's good with people and sensitive
to their needs to make the call. If the lawyer calls, clients may become confused about whether
the call is to request information, seek new business or request payment. Separate yourself from
the collections function to avoid this confusion.
#9: Consider arbitration first, collection service second. Lawyers who consider using a
collection service to collect a fee should first offer arbitration of the fee dispute through the
disciplinary system. Check the rules and regulations of your jurisdiction before proceeding with
either action.
#10: Avoid end-of-year haggling. Never cut your fee after a client has agreed to pay the full
amount. This sort of price shenanigan is quite popular during the month of December with clients
of large law firms. Clients agree to pay their large bills in order to get huge discounts because
partners are rewarded based on how much is collected by years end. Some of these clients have
gotten into the habit of attempting to discount their lawyers' fees for every matter. Dont bite.
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