I was talking with a fellow attorney recently, a member of the old guard, with decades of litigation experience under him. As attorneys are wont to do, he was regaling me with an old “war story.” He was telling me about a client he once had, who retained the attorney to prosecute a lawsuit on behalf of the client’s company. As the attorney told it, after over a year of heavy dispute and litigation, the case finally made it to trial and, at trial, the attorney prevailed and secured a sizable judgment for his client. After hearing the ruling, the client stood up and walked in disgust out of the courtroom.
The next day, the attorney called the client to see if something was the matter, and the client explained he was upset. The attorney asked, “Why are you angry? We won!”
To which the client replied, “Yes, but I don’t like the way we won.”
The attorney told me this story because he wanted to laugh together about how crazy and irrational clients can be. But that’s not what I got out of the story. What this story is really about is how poorly the attorney listened to his client, and how the attorney achieved his own goals while entirely disregarding his client’s goals.
It’s a common problem amongst attorneys. Too often a client or perspective client will come to us with an issue or a problem or a conflict, and the attorney will jump right into litigation without asking the client critical yet simple questions regarding the client’s goals. “What outcome would you most like to see?” “Is maintaining a working relationship with the other side something you would like to retain?” Or even simply, “What is it you want?”
Certainly, once the attorney knows what the client’s goals are, it is the attorney’s domain to develop a strategy as to how best to reach those goals. However, often, not enough time is spent communicating with the client to determine what those goals are. In spite of what too many attorneys believe, the attorney doesn’t know what the client wishes to achieve better than the client him or herself, and it’s not the attorney’s job to achieve those perceived (and often inaccurate) goals without any input from the client.
The practice of law is a collaboration between the client and the attorney. Attorneys call each other “counselor,” but that title is becoming increasingly inaccurate. A counselor counsels. A counselor communicates with the client, providing input, options, and, where appropriate, advice. A counselor painstakingly determines the client’s desired outcomes and provides advice and assistance where possible to achieve those outcomes.
The attorney in the anecdote above was undoubtedly a very talented litigator, but, at least in the eyes of this client, was not a good counselor. Had the attorney communicated more thoroughly with the client, perhaps the attorney would have learned that there was something more important to the client than simply prevailing at trial. Perhaps the client simply wanted his narrative to be heard. Perhaps the client felt the dispute could have been resolved in a much quicker and less costly fashion. All the attorney would have had to have done is ask.