Managing client expectations: Don’t promise them the moon

Setting realistic goals avoids client disappointment and makes it less likely that you will be subbed out of the case or threatened with a malpractice action

2016 January

One of our most difficult tasks as lawyers is not necessarily the work of writing a convincing motion that advocates our client’s position effectively, getting that motion filed timely, or arguing a point of law in front of a judge. It is often working with the client and maintaining a positive and mutually beneficial relationship with that client throughout the entire litigation process – a process that is stressful and most likely entirely foreign to them. 

Clients often do not realize all of the “behind the scenes” work that we do for them, and they often do not clearly understand the minutia of the legal fine points and strategy. As representatives of injured persons, we must remain mindful of their personal circumstances. Simultaneously these same clients are often also experiencing stresses of their own, feeling pain, and trying to deal with the pressure of managing their pain and balancing their anxiety over the litigation process itself.

As lawyers, when we first meet clients, we want to promise them the moon, to help them feel better and make them feel like they have more than a fighting chance at receiving reasonable and significant compensation for their injuries. However, throughout the entire process, we still need to ensure that this relationship is not built on unrealistic expectations; otherwise the relationship will quickly disintegrate when reality does not meet their vision.

Managing our clients’ expectations is a critical aspect of our job; indeed, the balancing of optimism and realism is probably one of the most difficult parts of our jobs as attorneys. Failing to maintain an effective and sustainable relationship can lead to clients demanding unattainable goals, failing to agree to settle the case after you receive a favorable offer, and general dissatisfaction with your representation of them – which ultimately results in you being subbed out of their case or threatened with a malpractice action.

Strategies to manage expectations

The following are some strategies I regularly utilize to help manage client expectations:

Formulate mutually understood goals that are realistic and achievable

You must determine what the client ideally hopes to achieve at the outset of your representation, and then explain to the client what you truly can deliver for them. Never promise what you realistically cannot deliver, even though the client is pressuring you for some sort of promise or guarantee. If you formulate mutually understood goals from the beginning, you create the foundation for a successful future ongoing relationship.

You must also be honest with your client about what to expect even though you would like to promise them more, partially out of fear they will go to another attorney who will in fact promise them what they want to hear. The better practice is to explain the best and worst case scenarios. Although it is troubling to hear from a client that they think I am being pessimistic when I am simply outlining the best and worst case scenarios – or explaining that things can happen beyond our control (like an errant court ruling) – I always explain that it is my duty as their advocate to explain everything to them, despite how difficult it is to hear the shortcomings of a case they feel should have no shortcomings whatsoever; particularly since they are the ones that are hurt and believe they are not at fault for causing the injuries in the first place.

It is also important that you ensure they understand what you are discussing – most clients are not legally sophisticated. You need to speak in plain language, and really intuit whether they understand and agree with the conceived strategy, approach, and ultimate goals.  For goals to be mutual, they need to be mutually understood.

For example, you must discuss their expectations regarding case value before a settlement or mediation takes place. Before a mediation, the client almost always asks what their case is worth. I typically give them a range, but always discuss the factors that affect their case. I make it clear that their case is not their brother’s case, their friend’s case, or their uncle’s case. Clients often want to lock you down to a specific number – resist this. Although you need to stay positive about their case (otherwise the client feels abandoned and/or not supported), you cannot discuss only the great aspects of their case with them, lest they will have unreasonable expectations about case value. I manage their expectations by selectively discussing the vulnerabilities and shortcomings of their case well before mediation. They are then prepared to consider that their case is not perfect. Moreover, they will have an open mind and accept the mediator’s assessment (and my assessment) of the value of their case at the mediation – and not expect and demand 100% of potential case value at mediation.

Maintain good communication with your client

We are all busy and are constantly juggling multiple issues and non-stop “emergencies,” but it is critical we make our clients feel important, and that we tell them it is okay and encourage them to contact us with any questions and concerns they may have; in turn, we also have the responsibility to keep in good communication with them. This means that if they email or call us, we should return their email or call promptly. We also need to keep the client regularly updated with the progress of the case. Call them, email them, send them letters – whatever is most convenient for them. Clients so appreciate contact and communication; clients that feel that their attorneys are approachable, reachable, and communicative maintain better feelings and are more easily managed when reaching the end game.

Give your clients choices

Important decisions must be presented as a choice to be made by them – not decided by you. The client must be able to make informed decisions. Explain their options, the pros and cons of the possible outcomes, and your general take on the situation and give advice – but always leave the decision in their hands and make it clear to them that it is their choice. If this is not managed effectively, your client may feel manipulated or coerced into making a decision about the case, such as settling, which may result in unwarranted complications at the end – such as a client not signing the long-form release after a mediation, or complaining that they had “no choice” to settle since their attorney made them do it, or perhaps filing a State Bar complaint, or filing a motion to set aside the settlement. In addition, important decisions should be documented in writing, such as a rejection of a Civil Code of Procedure 998 offer or an acceptance of a settlement offer. Otherwise, the client can later complain that you never properly explained the possible ramifications of rejecting an offer, they can deny that they rejected it at all and try to later argue that they accepted it, when they realize after the fact that they should have accepted it in the first place. In sum, the client should understand the alternatives and choices before them, and make an informed, documented decision.

Managing expectations is critical to settlement

The clients need to understand that mediation is about certainty and reducing risk – and that top mediation value is not what one might expect a top verdict to be at a perfect trial. I communicate with the clients, manage their expectations as to case value (as discussed above) and make them feel well-informed and part of the mediation process. They understand that they are the ones who will make the ultimate decision as to whether to settle a case at mediation. I inform them of the pros and cons of settling, and always make it clear that they are in control of the process. Settling is their sole and final decision, based on all known factors and the overall risk assessment, which has been made clear to them – starting well before the date of the mediation.

Discuss change of costs or substantive positioning of the case

If additional or unexpected experts are required for a case, or substantial costs are being incurred and the client’s cost bill is escalating, it is important to mention this to the client – at some point (obviously the sooner, the better) no matter how uncomfortable that may be. Explain that even though you are advancing the costs, costs will ultimately be borne by them and be paid out of their share at the end of the case. This will help to deflect “bill shock” at the end of the case when finalizing the distribution.

Similarly, if the case is getting more complex or has changed substantially in some way, procedurally or otherwise, you must communicate this change to the client as soon as possible – no matter how uncomfortable that may be. It is your duty as their attorney to keep them properly informed throughout their case so they can make informed decisions, feel a part of their case, and maintain attainable goals. 

Be honest with your clients

Relate with your clients on a personal level. Try to get to really know and understand them. Listen to them. Listening, educating, communicating, and relating to them on an honest level will ultimately build the framework for a strong, ongoing client relationship, allowing them to appreciate all of your hard work and truly understand that you are working for and with them to achieve the very best outcome for them.