How to Get Fired as a Lawyer
Many lawyers spend vast amounts of time, effort and money trying to cultivate new client relationships and build their practices. We look for opportunities to meet new prospects and get referrals for new business through involvement in professional organizations, hiring consultants, networking and other similar efforts to bring new clients and new work in the door. However, lawyers often do not spend enough time or attention on a much more effective and immediate form of business development: Keeping and expanding our relationships with the clients and the work we already have.
I spent ten years as in-house counsel for a medical malpractice insurance company. I then spent the last fifteen years building my own medical defense practice, often assuming responsibility for groups of cases that have been transferred to our firm from other lawyers who, for one reason or another, were not meeting client expectations. Between my in-house experience as "the client," hiring and firing outside counsel, and taking a look at cases that have been transferred to our firm from other lawyers, I have concluded that there are some fairly consistent practices that tend to get lawyers fired. Below are a few pointers that might be worth considering.
Act Like You Don't Want to Be Bothered by Your Client
Our desks, e-mail in-boxes and voice-mailboxes are full and constantly re-filling. Court deadlines loom. We must be organized and monitor our time closely so that we can get done everything we need to get done. When a client calls with an unexpected (and, from our perspective, not particularly important) question or concern, some lawyers consider it a "bother," and they would rather not be "bothered" by their clients. I have found that if you truly do not want to be bothered by your clients, eventually you will get your wish.
Clients can very quickly sense those lawyers who seem to be bothered by client requirements for early and honest evaluations of risk, timely reporting of key developments and prompt responses to telephone and email inquiries. Frankly, there is simply no good excuse for not calling a client back. It is common courtesy. Many lawyers act like the practice of law is really great, if they could just avoid "the hassle of dealing with clients." Eventually, those lawyers will find that clients will stop calling them.
Many lawyers simply do not realize that their client contacts are evaluated internally by whether the cases that they are supervising are being properly managed by having completed reports that answer the crucial questions necessary for clients to set reserves or update shareholders. These reports are not "optional." Lawyers who are "too busy" working their cases to update the client are taking a daily risk of being fired. Our law firm has assumed responsibility for a number of cases that were previously being handled by attorneys who were very good at litigating and trying cases, but the client had become fed up with unreturned phone calls, or persistent failure to comply with regular reporting requirements.
A call from a potential new client is great, and could result in new business and revenues. A call from a current client, who will almost certainly pay you for responding to the call, is more important. Failing to realize that distinction can get a lawyer fired.
Bait and Switch
Another great way to get fired is to tell a client early on that a case is very defensible, and work the case up for two years, at a great cost to a client, only to tell the client in the 90 days or so leading up to trial that the case has taken a dramatic turn for the worse and that it really needs to be settled. Clients tell their lawyers over and over again that they simply do not like surprises. In my experience, clients will not fire lawyers for telling them very early on that a case has serious problems and may need to be settled. In fact, most clients greatly appreciate a candid, early evaluation, even if it contains bad news. Clients will also usually not fire an attorney who gets an unfavorable trial result as long as the client has been fully informed of the risks and challenges and decides to try the case anyway. What clients do not like, and most do not tolerate, are lawyers who sell them a bill of goods by telling them that the case can be defended only to get scared on the courthouse steps and tell the client numerous reasons why it is just too risky to take the case to trial.
Similarly, sophisticated clients understand two things. First, your early evaluation is not necessarily your best, most informed evaluation. Second, things can and do change during the life of a case. However, lawyers can and do create problems for clients---and, ultimately, themselves---when they are consistently optimistic on the front end of a case and consistently pessimistic as the prospect of selecting a jury and putting their skills on the line approaches. This "bait and switch" approach destroys trust between the lawyer and the client, and often results in the lawyer being fired on that case and losing the opportunity to ever work with the client again.
Hand Off a Case to a Young Lawyer Without Supervision or Input from the Lawyer Who Was Hired by the Client
Most sophisticated clients tell us that they "hire lawyers, not law firms." That was certainly true for me when I tried to match up quality counsel with a new case. If you are the lawyer who is fortunate enough to get the phone call and be hired to handle a case or series of cases, you must commit to having enough input into the development of the case defense, and the key events in the case, in order to honor the client's trust when you were hired. Certainly, clients realize that the lawyer they hired will have associates, paralegals, and sometimes beginner-level attorneys, working with them on cases. However, most clients expect that the lawyer they hired will know enough about each case and its strategy to have substantial input on how the case is handled. Over time, the other lawyers in the law firm, if they are properly trained and if they listen carefully enough to the client, may develop the same level of trust to assume full responsibility for that client's cases. Until that strong level of trust has been established, and the "hired lawyer" has confirmed that the client is fully comfortable with complete responsibility being reposed in another attorney in the office, the "hired lawyer" must have sufficient input to know the client's expectations are met. If the "hired lawyer" does not have time to truly supervise and direct each case, that lawyer takes a significant risk of becoming the "fired lawyer."
Just Assume that the Client Knows About Your Good Work, Without Telling the Client What You Are Doing
As previously noted, our firm has had cases transferred to us from lawyers who I know are excellent attorneys who do good work. It is always uncomfortable when that lawyer, especially someone who I respect, calls to ask why the cases were transferred. On more than one occasion, I have had to tell the lawyer, after reviewing their files, that the client probably had no idea of all of the work that was being done, because the file did not contain correspondence to the client updating all significant developments.
It is extremely rare for a client to tell a lawyer that he or she is providing too many updates or too much information regarding recent developments. So long as the information is being shared in a concise, non-wordy manner, clients truly appreciate prompt updates of all significant developments. Even if the client prefers to get most of its information in the form of reports of counsel every 90 or 180 days, most clients still appreciate short update emails contemporaneously with each significant development. On the other hand, lawyers whose egos insist on the notion that the client should "simply trust that everything is getting done," or who are not sensitive to justifying their ongoing legal bills by keeping the client informed of period case developments, take a major risk of getting fired.
Fail to Listen to What the Client Wants
Lawyers can get so caught up in developing a successful trial strategy or defeating the opposition that that we fail to truly hear what the client wants. Some clients want the lawyer to develop an effective defense strategy and evaluate the risks, but they do NOT want to go to trial. A lawyer who keeps insisting that the case should be defended through trial, when that is not what the client wants, definitely risks getting fired (or not hired for the next case). Other clients want to aggressively defend cases through trial even though the case has major risks of losing. An attorney who is tone-deaf to the client's desire to go to trial, and who harps on the scary risks of losing at trial, or litigation costs, risks alienating and losing the client.
The focus of my practice is medical malpractice defense. Even within that fairly narrow practice area, client expectations and approaches vary a lot. Some are quite bullish and willing to try even the cases that are difficult or present substantial risk of a verdict. Others would prefer to settle cases that we feel on balance are likely to be won at trial. While there is a fairly consistent concern across the board about keeping legal expenses manageable, some clients still want to incur the expense of digging deeper and turning over more rocks than others. Ultimately, however, the lawyer's job is to do "what the client wants." Lawyers who think they "know better" than the client, or who fail to develop an understanding for how the clients want cases handled, may find that the client goes elsewhere for future legal needs.
Over-Work and Over-Bill the Case As If It Is the Only Case You Will Ever Get from That Client
There is a certain self-fulfilling prophesy in treating a case as if it's the only case the client will ever assign to you. Lawyers who try to maximize the billing associated with the limited cases that they receive from a particular client are very likely to receive very few assignments from that client in the future. On the other hand, if you view each case as an opportunity to truly help your client resolve the matter in the most efficient, inexpensive way possible, while maximizing a successful result, you are far more likely to get more cases from that client. Therefore, if you truly believe that the first case you receive from a client is the first in a long line of assignments you will be receiving, and you treat the case as if you are a partner with your client and not a mere vendor, a long-term relationship becomes much more likely.
Write Really Long-Winded Reports or Copy-and-Paste Too Often
Most clients have report forms that we have to complete, or they require narrative reports after major events in the case. Some report forms are long and require you to fill in blanks; other reports are shorter, but require you to squeeze in lots of information about the case according to various topics and headings, some of which may not be particularly helpful. The key to any report is being succinct and telling the client what it needs to know at the very beginning and the very end. Some lawyers like to write and they write well, so they go on, and on, and on, without the client knowing what the key point is or the next step in the case. Most clients do not have time to read a long-winded report that shows what a good writer the lawyer is, but that does not tell the client the key facts they need to know, how those facts affect the case, and the next step in the case.
Another problem is that some lawyers cut and paste the same paragraphs from the first report to every subsequent report without changing the facts or the analysis based on the development of the case. Some clients will not catch this, but it only takes one time for the client to notice that a report has been copy-cut-and-pasted too many times with no new information being added and that the analysis has not changed as the facts have developed. This risks damaging the clients trust that the lawyer is continuing to re-evaluate the case as it progresses.
Come Unprepared to Mediation or Settlement Conference
Some attorneys prepare their case for a mediation or settlement conference based on how they think the other side is going to prepare for it. Clients do not like it when they see a well-prepared, passionate, and thoughtful presentation from the plaintiff at a mediation and then see their attorney totally unprepared to address the plaintiff's arguments with an equally well-prepared and thoughtful presentation. I have personally received new work as a result of simply being better prepared for a mediation than the lawyer for a co-defendant.
A lawyer should prepare the case for mediation or settlement conference the way it needs to be prepared, regardless of how the other side prepares. It is also usually insufficient for an attorney in opening session to just say, "We are here in the hope that we can get the case settled." [No kidding. Thanks for that helpful input.] Even if the case appears to have little to no value, it is still a serious matter which the client, unless attending the mediation under duress, would like to resolve if possible. A lawyer who fails to prepare for mediation so that the client knows he or she is taking the case seriously may fail to get future case assignments from that client.
Find a Conflict Between Defendants Half-Way Through a Case
We often have the opportunity to represent multiple individual defendants employed by or affiliated with the same provider or insurer in a single case. This can, of course, create conflicts of interest between the defendants which should be addressed at the outset of the case. Where a legitimate, non-waivable conflict exists, one or more of the individual defendants is entitled to be represented by another attorney.
Lawyers who fail to aggressively explore and address conflicts at the very beginning commit firable offenses. Clients do not like to have to transfer a case to several new attorneys due to a conflict that developed between defendants half-way through the case. In addition to creating additional expense and complication, a change of counsel midway sends up a red flag to the opposing attorney that something is amiss between the defendants. If a conflict truly exists, it should be identified early after all defendants have conferred and determined whether one lawyer can represent multiple defendants. Developing a conflict after the case has been worked-up for six months to a year shows that the lawyer is unprepared, did not do his/her homework at the right time, or is simply scared and intimidated by the case and wants to dump it. Most potential conflicts can be worked through by meeting with each defendant and helping them to understand that it is in everyone's best interest for them to be represented by the same attorney and be on the same page regarding their defense. Conflicts only complicate the case for everyone, except the plaintiff.
Defensively Refuse to Take Ownership for Missteps
No matter how client-oriented a lawyer may try to be, situations will occur where the client's wishes are not met perfectly. When the client calls to express disappointment or any hint of dissatisfaction, the lawyer should view this as an opportunity to improve the level of service to the client. Sadly, many lawyers allow their egos to get in the way, and react defensively. Lawyers who insist that they are perfect, or that the client's expectations are unreasonable, may be taking a big step toward being fired. Instead, the wise attorney will fully own his or her mistake or failure to meet client expectations, and propose a plan for how to make sure that the same mis-step does not occur in future cases. This approach allows the client to feel heard and valued, and actually improves the bond between lawyer and client.
Trust Is Key
Getting new work is great, but it can be difficult and unpredictable. Keeping work from a trusted client---and avoiding getting fired---should be easier and frankly more profitable and secure, if we commit ourselves to good, strong, client-focused practices. It takes years of responsive, reliable reporting, backed up with results that fit the lawyer's evaluations, to build trust with a client. However, that trust can evaporate quickly by getting too comfortable, too busy, or too ego-centric to avoid pitfalls that can be the first step toward getting fired as a lawyer.
