X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Analytical abilities. Lawyers pride themselves on honing such skills, yet often fail to apply them in their own backyard. Namely, they often don’t make enough effort to determine whether prospective clients will be a good fit. Attorneys and legal consultants alike agree that in accepting clients that are right for a particular law firm, there’s more to it than checking for conflicts and depositing the retainer. “Many lawyers today are focused on practice organization and technology, but not on effective client selection and analysis,” says Mark Robertson, chair of the American Bar Association’s Section on Law Practice Management. Linda Ravdin, a partner with the 11-attorney firm of Pasternak & Fidis in Bethesda, Md., says lawyers can’t underestimate the value of conducting their own due diligence. Ravdin developed her own set of preliminary intake questions that helps her screen potential clients for her family law practice. “You really can tell a lot about a client just based on that initial five- to 10-minute basic conversation,” says Ravdin. Beyond the basics of establishing employment and potential sources of income, some of her standard questions include: � What is the status of the case? Is there a lawsuit pending? In which court? � Is there some sort of emergency filing needed? If so, how short a deadline is there for the filing and how long will it take to get up to speed on the matter? �Have other lawyers already worked on the case or been consulted? Under what circumstances did the relationship with prior counsel end? Andrew Dietz, a legal marketing consultant with Atlanta-based Creative Growth Group, says that lawyers who are just hanging out their shingle sometimes feel they must accept whatever business walks in the door. As time goes on, though, Dietz say it’s important to become more discriminating at the intake stage and analyze issues such as: � How much profit on a matter is enough? Dietz says that it’s important to take the time to analyze fees along with overhead, salaries and opportunity costs. �Is the matter outside the firm’s specialty areas? � How does this client or case fit with the personality of the firm? Even if a new matter is within your legal expertise, is this the type of client your firm wants to represent? For example, many firms do corporate work, but one firm may prefer to specialize in advising corporate CEOs while another may want to focus on smaller “mom and pop” type businesses. Issues such as the client’s ability and willingness to pay and how easy the client is to work for deserve special attention. FINANCES One of the most important jobs of the intake interview is to make sure that the prospective client has the ability and the willingness to pay. At the end of one initial meeting, Ravdin had a prospective client refuse to pay her current fee, even though he had been informed about her hourly rate and payment policy for consultations. The prospective client balked and tried to barter with her over what he would pay for that meeting — Ravdin sent him on his way without getting paid. She was upset that she had been “stiffed,” but she realized that he was probably the type of person who would have protested later bills as well. Joel Rose, a legal marketing consultant with Joel A. Rose & Associates in Cherry Hill, N.J., says that Ravdin’s type of scenario is the biggest red flag to note during intake: “If there’s either a hesitance about paying a retainer at all or a problem with the amount, that’s a warning signal.” Of course, he adds, each firm must decide its own philosophical approach to law practice, weighing practical considerations, such as meeting payroll obligations. Others say just addressing the issue of fees and retainers can act as a type of reverse screening tool by letting potential clients know up front how much the legal services are going to cost. Sometimes that weeds out people who can’t afford certain hourly rates. “We have found that 99 percent of the time when the client signs an engagement letter and provides a retainer to get the work started — even if the billable work goes over the retainer — we don’t have a collection problem,” says Daniel O’Connell Offner of the three-lawyer Los Angeles firm of Offner & Anderson. “In those 1 percent of cases where we don’t require an engagement letter and retainer there almost always seems to be a problem.” Offner’s partner David Anderson says they’ve discovered that if a client is uncomfortable paying a retainer up front, many times those are the clients that are overly critical of future legal bills or refuse to pay for “excess” time spent on a matter. Being led down the primrose path about a potential client’s finances is something all attorneys try hardest to avoid. Some contend it’s okay to investigate whether a potential client has more than one source of funds to pay your bills. Andrew Dietz agrees that a bit of investigation is invaluable. “If the client has professional relationships with others in the community, such as auditors or consultants, you could ask them generally what kind of client that business or individual has been. If the client has other vendors, check with those vendors about whether the client pays his or her bills on time,” says Dietz. CAN YOU WORK WITH THE PERSON? Just as important as whether a client will pay is how difficult he or she will be to work with. The intangible factors are well worth considering when evaluating a possible new client, according to attorney Robertson. He stresses that over time he’s gotten better at picking up the subtle signals during an initial consultation that could lead him to conclude that another attorney might be better suited to handle that client. Kristine Nesthus, a litigation partner at the three-person San Diego firm of Bankhead, Nesthus & Scalone believes that lawyers who’ve practiced law for a number of years can never discount the value of their gut reaction during an initial consultation. “I try to get a sense of what a person’s expectations are for possible litigation and how realistic they are with the range of possible resolutions,” Nesthus says. If her gut reaction isn’t a good one, she may steer clear of that piece of business. For example, when she was an associate, Nesthus says she had to work on a case with a “difficult, abusive and demanding” client. Based on that experience, if her gut says that the client may be difficult, Nesthus may not take on that matter. And don’t be blindsided by pity, guilt or charisma. Pasternak & Fidis’ Ravdin acknowledges that no intake system is perfect, and sometimes a firm may end up with a case that had signs of being a problem child all along. She says she’s learned, the hard way, the importance of focusing on the case itself and not letting emotions about a client’s situation get in the way of her intake analysis. “I once worked on a divorce for a stay-at-home mom with three kids. My heart went out to her. She was out of the workforce and said she had no regular source of income. She also claimed she couldn’t look to her parents for any financial support. I realized at the intake stage that if I took her case, I’d have to charge her a low retainer. Later, she stopped making the monthly payments and became a really demanding client,” says Ravdin. When a client is being charged a reduced rate, Ravdin believes problems can arise because there is no true cost/benefit connection for a client between the services they are asking for and the costs of those services. She says in that situation, clients end up demanding things they wouldn’t ask for if they had to pay the full price. Plus, she later also found out her client hadn’t been completely honest about her finances. “It turned out that this woman’s parents were really wealthy. My former client later ended up inheriting millions of dollars, so not only was she unreasonably demanding, but she wasn’t up front with me about possible sources of financial assistance to pay our bills,” says Ravdin. On the flip side, Ravdin says when you’ve done good intake and get a good outcome, there’s a big psychic reward from having a client who appreciates not only the result, but also how the matter was handled. Attorney Anderson agrees that it is dangerous to be persuaded by the client to jettison standards. When Offner & Anderson has had problems collecting, often it’s stemmed from disobeying their own rule. For instance, “we agreed to do some work for a client who was great at convincing us that we wanted his business. He was such a good salesman, we didn’t stick to our standard case evaluation process,” says Anderson. The firm was in a transition with other clients, and this client was asking the firm to do its licensing, intellectual property and corporate work. At the time, Anderson says, it sounded like a great opportunity. Plus, people we knew had given him references. The firm took a large retainer up front but it was not large enough to cover the work they knew they would have to do. The client consumed a lot of attorney time very quickly, exceeding the retainer in a short time frame. The client later went bankrupt. “If we had been more diligent and hadn’t deviated from a process we know works for us, would have had a better feel for whether it was a good risk to take,” says Anderson. SHOULD YOU TAKE A CASE THAT ANOTHER ATTORNEY HAS ALREADY WORKED ON? If a potential client previously consulted several attorneys, Ravdin and others agree that the revelation is a red flag worth paying attention to in assessing whether the case will be worth your time and effort. For example, Ravdin says, if multiple lawyers at different firms have worked on a case, it could indicate that the prospective client is difficult to satisfy, has unreasonable expectations or didn’t pay his legal bills. Or, it could mean the previous lawyers did not competently handle the matter. If that’s the case, there may be a legal mess that needs to be cleaned up. One of Kristine Nesthus’ personal rules is that she won’t take over a litigation matter that has been started by another lawyer. She’s found that, when taking on a case mid-stream from another firm, the chances are high that the reason for the switch is because the client is hard to handle or previous lawyers have created a problem that the next lawyer will need to clean up. So, she says, someone must make a great argument to convince her to deviate from that rule. But she admits that sometimes taking a calculated risk on a new matter can pay off. Shortly after joining her current firm, Nesthus was asked to take on a matter for one of the firm’s longstanding clients. Another firm had already been handling the case. “A client of one my partners wanted me to take over a large arbitration matter from another firm. I’m ordinarily reluctant to take over cases someone else has started, but this one was in the early stages and my partner assured me the client was not unreasonably making a change [in law firms],” says Nesthus. “This situation turned out great — I loved the client, we got a great result of a seven-figure judgment against a major insurance company that could pay it, and the client was so happy they paid me a very generous bonus. This was an unexpected happy exception to my general rule.” SPECIAL CASE FOR PLAINTIFFS ATTORNEYS Plaintiffs lawyers have a different set of issues to deal with when deciding whether to take on a new case, especially when payment will ultimately be based on a contingency fee arrangement. Kerry Staton, a partner with the six-person firm of Schochor Federico & Staton in Baltimore, which focuses on medical malpractice liability cases, says in addition to initially assessing a matter on the phone, his firm has found it’s important to: � Meet the client in person. This helps to take a more thorough history of the case and assess how a case will work in front of a jury. � Obtain and review all the appropriate records, medical or otherwise. � Get experts to evaluate the case. � Make sure the statute of limitations isn’t about to run. A person may have a good case, but if they’ve waited too long to get an attorney, there may not be enough time to perform a thorough case analysis. Staton recalls that as a much younger attorney, a difficult lesson taught him the importance of actually meeting a client before saying “yes” to a representation. “I took a case years ago where the client had suffered some nerve damage during an operation that made walking extremely difficult for her. She lived some distance from our law offices, so I decided after talking with her on the phone, that since the medical records and experts indicated she had a good case, I didn’t need to meet her at that time. “I didn’t actually meet my client face-to-face until right before her deposition. It wasn’t until then that I discovered she had another unrelated pre-existing medical condition that prevented her from walking normally and which would seriously limit the damages we could recover,” says Staton. Given the nature of her pre-existing condition, it would be difficult to prove that all her damages were related to the operation, he says. If he had stuck with his “meet the client” rule, Staton says he might not have accepted that case. While lawyers are out beating the pavements to find the new business to bring in the door, it’s important to remember that convincing that client to hire your firm is only the first step in evaluating what kind of relationship a law firm will have with a client. Joanne Cronrath Bamberger is an attorney and freelance writer in Chevy Chase, Md. Contact her at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.