Attorney-Client Communication: A Shared Responsibility (Part 1)
By Daniel G. Gillispie
Throughout my career, many clients have come to me with only the narrowest understanding of the legal process, one based mostly on portrayals in movies, television and books that might have very little resemblance to the legal system of the real world. Outside of the world of fiction, the available information tends to cover just the nuts-and-bolts of the legal process while completely omitting any information for what clients can expect from the attorney-client relationship itself. Thus, it is essential that an attorney and client have open and effective communication. In this article, I begin the first part of a two-part discussion about how successful communication can be helped – or hindered – in the attorney-client relationship.
First, a confession: I believe that lawyers, in general, fail to prioritize our client’s understanding of the legal process as part of the overall work we do. Certainly clients are informed of important aspects of their case – indeed it is an ethical obligation to do so - but for the most part it is a very easy thing for a lawyer to do their work in a way that discourages the client from “looking behind the curtain.” I make no exception for myself; it is a shared failing of the profession that, in an effort to efficiently resolve our client’s disputes, we will occasionally goad the client into agreeing to strategies or settlements before they are truly comfortable on a “gut level.” As attorneys, we justify it because we believe our training and years of experience slogging it out in the courtroom give us an understanding of the process that simply cannot be imparted to a “lay person.” Though not without a kernel of truth, nevertheless the client has the right to expect their attorney to fully and adequately explain the legal process and attorneys must be prepared to explain that process until it is understood. No matter how favorable the final outcome may be for a client, it is difficult to say that a client has truly been well-served if they do not understand how they got there.
On the other side of the coin, clients sometimes figuratively plug their ears and yell “LA LA LA LA LA!” when the attorney presents them with unwanted information. Thus they find themselves “confused” by the process. Often this type of client has formed rigid and unyielding beliefs regarding the strength of their case and likely outcomes, and simply cannot bring themselves to see the world any differently. Sometimes, it is not the client but those who have influence over the client that actually cannot "handle the truth." In my experience parents of young family law clients (i.e., those in their late teens and early 20s) can be particularly prone to demanding their child maintain strident and unsustainable positions in the litigation that the client does not truly wish to take.
In other situations, well-meaning voices eager to put their two cents in will suggest to the client that they should get some particular result in their case because of the outcome in a completely unrelated case. This ultimately leads to conversations with their lawyer along the lines of “My friend got X Y and Z when she got divorced so I should too,” often immediately on the heels of the lawyer explaining that they will not get any of those things. Though these outside voices are trying to help, they aren’t. The fact is that the number of people who actually have a “slam dunk” case is a tiny fraction of those who believe they have a slam dunk case. Moral of the story: It may sound better when your neighbor tells you have a great case, but when your lawyer tells you otherwise it’s more likely to be the truth.
Next week, we will discuss the attorney’s duty of loyalty, and what that means for you when your lawyer starts sounding like they’re “working for the other guy.”
Daniel G. Gillispie is a solo practice attorney in Billings, Montana.