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How to Get Clients to Eat Their Spinach

By Ellen C. Brotman

Years ago, when I was a new lawyer, I was also a new mother. At home, my husband and I were coping with two children under four; at work, I was representing a difficult client in my first custody matter in family court. My young careers had much in common. Each required me to convince some very stubborn people that I knew what was best for them. What I had to learn was how to give advice that could be heard, understood, and followed.

The Model Rules of Professional Conduct served as my how-to guide for the difficult dilemmas that arise during the attorney-client relationship. They told me that my client could determine the goals of the representation, we should try to agree on the methods, and I had an ongoing obligation to give it to him straight about both. Meanwhile, at home, my toddler and I were also clashing about goals and how to meet them. There I was, learning that the terrible twos could be managed through some other rules I arrived at through experience, judgment, instinct, and selectively accepting the advice of others.

The first of those rules is “listen.” Our ability to persuade clients is measured by how much they trust us. Building trust with clients, as with children, requires understanding and empathy. Whether you represent a corporation or an individual, clients need to know that you have heard their story, that you understand how they feel, and that you care about their concerns. Often in client meetings, we have so much expertise that we want to share that it is hard to just stop and listen. But before we can work with our clients to develop realistic goals and successful strategies, we need to do more than just wait for the client to stop talking so that we can start.

I am a firm believer in the power of “active listening,” a skill I learned when I had my second child. My first child, who was not yet four at the time, was not happy about this interloper and would frequently tell me that she hated him. Like other parents, I was dismayed and tried to convince her that this was not true. Then one day, I tried some “active listening” skills I had been reading about. Here is how the conversation went:

My daughter: “I hate the new baby. Let’s give him back.”
Me: “You hate the baby and wish he wasn’t here.”
My daughter: (surprised!) “Yes!”
Me: “You liked it better when he wasn’t here.”
My daughter: “Yes! Let’s give him back.”
Me: “I hear you say that you want to give him back. We can’t do that. Is there something else we can do that would make it easier for you to get used to him?”

My daughter thought this over and came up with some ideas, including keeping her brother out of her bedroom while I read to her before she went to sleep. Once my daughter felt that I had heard her concerns and understood how she felt, together we could move forward to establish some reasonable goals.

As I learned to use active listening to help me with my children, I began to try it with my clients. With my difficult family court client, I stopped trying to persuade him that his goals and methods were wrong and instead listened carefully to his description of how his wife’s leaving the home had affected him and his children. As I listened, I heard the pain and humiliation, the abandonment and rejection. This did not change my opinion that the client was a bully whose anger was preventing him from doing what was best for his children and whose controlling temperament had probably driven his wife away. What active listening helped me hear was that, no matter what his culpability in the situation was, he was a human being in pain. I could also hear that my client believed that any emotional harm his daughters would suffer as a result of testifying—a litigation tactic he wanted to use to gain custody--would be their “mother’s fault,” not his. This insight helped me see the futility of trying to persuade him to avoid that harm. Instead, I tried another argument: I advised the client that using his children as witnesses was simply a poor litigation strategy because there was a danger that the court would see his daughters’ testimony as evidence that he was not acting in the children’s best interests and would hold this against him in deciding the custody issue. The client could hear this advice and was receptive to its reasoning, whereas my earlier attempts to persuade him based on what I believed was better for all the parties had fallen on deaf ears.

The corollary rule to active listening is empathizing: understand your clients’ motivations without judgment. I do not mean that you must endorse all their past or future actions. I mean that we suspend judgment of our clients so that we can exercise our judgment on their behalf. One of my early cases involved the defense of an individual accused of stealing a valuable piece of art. The owner of the stolen art was a woman who had serious mental health issues; our client was her trusted employee. The employee insisted that she had “given” him the artwork and that her illness was causing her to forget the gift. I did not believe this story and uncomfortably felt that our defense exploited her illness and was itself part of the original criminal scheme. When I broached this topic with my boss, his advice was impatient, sharp, and just right: “Let me tell you what we do for a living: we don’t judge, we defend. The government has a different job, and so does the jury, and so does the judge. We all have to do our jobs as well as we can for the thing to work right.” For me, it was a moment of liberation. In my personal life, I am definitely on the judgmental side, but in my work life, I understand that my clients are in deep trouble, usually of their own making, and my job is to stand by them.

This brings me to my third rule: Timing is everything, also known as “you can’t plant the seed until the ground thaws.” This is another principle of child-raising that I was able to apply successfully in the office. It started with my son; he hated bedtime. I learned that his anxiety about it could be allayed by reminding him many times during the evening that certain things would happen in a certain order: dinner, cleanup, bath, books, and out with the lights. He knew what to expect and he could prepare.

With clients, the conversation might go like this: “Next time we meet, we will need to talk about the tax consequences of this,” or “Soon we will need to deal with the forfeiture issues,” or “Eventually we might want to discuss what type of plea offer you would consider taking.” This rule works best when you have been successfully applying the first two rules: listening and empathizing. What I have found is that while I am listening to a client and understanding what he feels, I am also preparing him to hear news he does not want to hear. The time spent learning about him and his circumstances demonstrates that I care about him and I am doing the best I can to accomplish his goals. He knows that I am on his side, and I know that when he needs to hear the bad news, he will.

With clients who are accused of wrongdoing, whether they are lawyers facing disciplinary proceedings, doctors facing accusations of Medicare fraud, or bank employees accused of embezzlements, the most delicate and difficult aspect of the relationship is how to help a client decide not to fight the charges but to negotiate a plea. When I meet a new client who wants to go to trial, there are several reasons why I do not begin the relationship by arguing about that decision. First, it is not my decision. Second, it is usually too early in the game to decide. Third, it is too early in the relationship for the client to hear my advice. My clients are looking for an advocate who is tough and ready to fight. I learned as a young assistant federal defender that mentioning a plea or cooperation too early in the representation can be fatal to a client’s ability to trust me as his advocate. A better time to talk about a possible guilty plea is when the client is convinced that I am ready to, and can, take the case to trial.

This brings me to another rule that I learned from my children: When faced with a new and challenging situation, demystify it. Explain the process step-by-step in a way that is consistent with your client’s level of sophistication. Once we had fully explored the evidence and litigated some motions together, one criminal defense client of mine knew that I was fully prepared to try the case. When he heard about cases that he thought would help his case, I read them and explained why they did or did not help. When he heard about other cases in which individuals in similar circumstances had received probation sentences, I investigated those cases and explained why they were not applicable. When I began to advise him to accept a deal for closer to five years, rather than the possible 12 or 15 years he could face after trial, he was ready to listen. He knew that I was giving him the advice after a careful, thorough analysis of the evidence, not because I was not ready to go to trial or lacked the toughness to fight the government. He accepted my advice because he trusted and had faith in me.

Time has passed since I embarked on my two challenging, stimulating, and rewarding careers. My children have grown up and my ability to influence them has waned. On the other hand, when a new client comes in with an interesting and difficult problem, the rules still stand me in good stead.

Keywords: Litigation, clients

Ellen C. Brotman practices with Montgomery, McCracken, Walker & Rhoads, LLP, in Philadelphia, Pennsylvania.

This article was adapted from a longer one that was published in the Summer 2009 issue of Litigation.


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