Delivering Bad News to Clients, with Marjorie Aaron

Jennifer  (00:35):

Hi, I’m Jennifer Whigham

Stephanie (00:36):

And I’m Stephanie Everett. And this is episode 3 84 of the lawyers podcast. Part of the legal talk network. Today, I’m talking with Marjorie Aaron about how lawyers can deliver bad news to clients.

Jennifer  (00:49):

Today’s podcast is brought to you by MyCase, LawPay and Posh virtual receptionists. We wouldn’t be able to do this show without their support. So stay tuned and we’ll tell you more about them later on.. I told myself, Stephanie, I wasn’t gonna start this with, so Stephanie, because I noticed every intro I start with. So Stephanie, so I guess I’ll just start with that and say, yes, what’s coming up this summer.

Stephanie (01:13):

Our favorite event

Jennifer  (01:14):

LabCon yes. Which we have talked about many times. I was just talking to one of our sponsors who’s coming. And she has been a LabCon Lawyerist fan for a while and has never attended, but is really excited. So yeah, I know people know about it, but not everybody. So maybe we should talk a little bit about what LabCon is to us, what our lab community is, et cetera. Do you wanna give everyone just, you know, the two to three sentence description of what we’re talking about?

Stephanie (01:43):

Yeah, I’ll do my best LabCon is our annual in person event. It did have to be virtual for a while, but it’s back to in person. So if you’re comfortable traveling, we like to think of it as a couple of days that lawyers could come and set aside time to be thoughtful about their business and what their business needs and to actually work on and build tools that they can use immediately for their business. So we call it an un-conference because it’s not a typical event where you show up and you get your agenda and you go figure out what room you wanna be in or what track you wanna be in. And you sit and listen to someone, speak at you for all day. Instead, it’s very interactive and it’s very participant driven where we’re in the room and we’re facilitating the magic happens, but it really is a lot of connecting with other lawyers. And then you often are trying to solve similar problems. And so we break you out into groups and we figure out what that problem is. And we give you help right there on site of let’s solve it together.

Jennifer  (02:49):

Yes, that’s exactly it. And when I said sponsors, I don’t want you to think about sponsors in the way that they’re in a booth in a different room. We do have sponsors come, but they are participants just like our participants. They might lead a breakout, but they’re there to help you with whatever their line of expertise is too. So you’re not getting sold out. You’re not getting pitched yet. This is really a chance to get together with people who are like you working on the same problems, similar practice areas, perhaps similar stages of the business and get away from the office to do these things. And I’ll say I was just reading our feedback from last year’s lab con, which was in November. And so much of it was about people being excited about being around people like them. They just don’t get to be around these tech board solo and small firm lawyers that are excited about the things that they’re working on that are just really championing them and giving them advice. So, yeah, it’s a really great time.

Stephanie (03:45):

I mean, when we first designed the program, the original ideas, do you know, when you go to a conference and all the magic that happens in the back of the room and in the hallways and over lunch, when you just have those really inspiring conversations with other people, we were like, what if we just built an event around that? And we captured that magic, but we blew it up and made that the central focus of the event. And so there is this just really fun, hard to describe sometimes energy. Yeah. That happens at the event. When you just get a lot of really smart forward thinking people in the room together, and everyone’s at different places in their business. So don’t let that be intimidating if you’re thinking, oh my gosh, well then I don’t belong in this group because I don’t have as much to add.

Stephanie (04:27):

Everybody has something to add and no matter what stage of your business you’re at, if you’re just getting started or if you’re really further along somebody else, like you is in the room and everybody learns from each other. And even if you think, well, I’m just getting started on my business. You have unlocked something that someone else is probably struggling with. And so there’s just a lot of collaboration that happens. Our coaches are there. What we say is it’s primarily for people who are in our paid coaching program, which is called lab, but we have some special spots and we do this on purpose. We wanna invite, if you’ve been thinking about this, if you’ve been wondering if you’re a good fit for our community or what it’s like to work with us, we have some special spots open for people who aren’t in lab yet so that they can come, they can participate fully.

Stephanie (05:15):

They can experience it. It’s like a great place to try us out if you’re not sure and see what the community’s about and if it’s a great fit. Awesome. And you wanna join lab, we credit your registration costs to your first month of lab. So there’s no, you’re not out anything there. If you come and for whatever reason, you don’t decide to join lab. That’s okay too. We’ve had people who’ve come and then waited to join lab. Like one person it took ’em like another year and a half, I think before you joined. Right. Which is fine. So there’s no pressure. You’ll if you haven’t heard me say this before, I am like, we are the least high pressure sales people there are because we’re

Jennifer  (05:52):

Like, we don’t know how to pressure people, honestly.

Stephanie (05:55):

We’re just like, if you wanna join us, great. We’d love to have you. If now’s left the time, that’s fine too. But here’s my personal guarantee. If you come to the event and you participate, like you show up and you come and be a part of what we’re doing, I guarantee you that it will improve your business. In some way, it will have a positive effect. You will make a connection. I mean, I had someone email me the other day and he was like, this one thing you told us about was worth the price of admission and his whole team’s happy. And it was just an unbelievable result for him. And it really was like a 10 minute moment from lab con. So imagine 10 minutes multiplied by two and a half days. I don’t

Jennifer  (06:33):

Know whatever that math is. Yes. Awesome.

Stephanie (06:36):

That’s my pitch.

Jennifer  (06:37):

That’s a good pitch. And I will say my, my small pitch right at the end, not to take the explosion of Stephanie’s, which is much better is that I don’t like conferences. I don’t like crowds. I don’t like being away from home. Honestly. I’d rather just hide in the bathroom at these things. I love this conference. Like I have a smile on my face the whole time. It is so much fun. Even though I’m in the back kind of running things, I learn so much about our business when I’m doing it. It’s unlike anything I’ve ever done. And so if you were a person who usually shys away from these things, this isn’t one you wanna come to.

Stephanie (07:10):

Yeah, we should give some logistics though.

Jennifer  (07:12):

Yes we should.

Stephanie (07:13):

So the event this year is July 30. First. It wraps up the morning of August 3rd. You can kind of leave at your leisure. It’s happening in Atlanta. There is a registration fee to attend. If you are coming as a special guest, and we just need to have a conversation with you because we like to talk to you and just make sure we get to answer your questions, find out what you’re working on. Yeah. So that we can be best prepared to help you. And so the best and easiest way to do that probably is to email either of us. So we can send you a scheduling link. So you can send an email to stephanie@lawyeristbackup.kinsta.cloud or jennifer@lawyeristbackup.kinsta.cloud. Or if you just go to lawyeristbackup.kinsta.cloud and look for lab, you’ll find a bunch of links there. It’s just really a, a quick conversation so we can get to know you. And then we can give you all the details to sign up because we do have to actually email you the registration link. You can’t just go onto the website and sign up.

Jennifer  (08:08):

All right, next up Stephanie’s conversation with Marjorie Aaron,

Marjorie (08:12):

My name’s Marjorie Corman Aaron, I’m a professor of practice at the University of Cincinnati’s College of Law. I’m also a lawyer and an arbitrator and a mediator in recent years, or maybe the last 20 years, I’ve become increasingly interested in how it is that clients make decisions. So my work involves teaching mediation and negotiation, but particularly client counseling and, um, also decision tree analysis, which is another field that I have written about. But I understand that’s not the topic of today’s podcast.

Stephanie (08:49):

No, but welcome to the show. I mean, honestly, we could probably have you on like 10 times for all these topics because you cover so much. And what I hope we could chat about today is this idea that you’re training lawyers on how to communicate with clients more effectively. I mean, is that a good synopsis?

Marjorie (09:08):

That’s exactly what it is. And I think it comes from so often when I have mediated cases. So not in the law professor mode, but in the mediator mode and sometimes even the arbitration mode, but mainly in mediation, what I see is, you know, these folks could have settled the case without hiring a mediator. If only the lawyers had communicated more effectively with their clients. And so I started to be able to, excuse me, observe what gets in the way of clients, making decisions that would serve their interests best. And it seemed to me that there were many blocks to that. And that oftentimes, because it’s not easy lawyers aren’t trained or well equipped to help a client overcome or get around what would be blocking and otherwise intelligent decision.

Stephanie (10:02):

Yeah. And what I also love and all of this, a lot of this research, you’ve put in a book, which I’ll go ahead and plug now for anyone who’s listening. Um, it’s called client science advice for lawyers on counseling clients through bad news and other legal realities. And what I appreciated in the book is that you’ve been able to really test and experiment all the advice in the communication tools you’re teaching in law school clinics. So you’ve worked with lawyers and law students and watched and observed how different communication techniques might play out in real life, which I find just fascinating.

Marjorie (10:41):

<laugh> well, that’s good. The approach, the whole approach to it came from my practice and from what I know about the negotiation and dispute resolution literature, but the book itself came from a certain end of course, exercise. And I thought when I started teaching the course that I teach that I knew something about client counseling, but I devised this exercise that at the time, I didn’t know how fiendishly difficult it would be, but in it a lawyer or a law student has to give a client bad news that they weren’t expecting to hear. They have to get through some reasonably complicated legal ideas and issues and assessments. And the client has to understand them. The lawyer has to try to get the client to settle for an amount that’s in this case, lower, but different than what the client would have imagined initially, and also try to get, make it so that the client is satisfied with the decision and thinks their lawyer is the greatest in the world.

Marjorie (11:40):

So I devised this exercise as an end of course, exercise, which is really cuz it’s how the course was created. And I was privileged to work with some really wonderful actors in the role of the client. And I was sitting there as an observer and a, and recording it on video before we all recorded on our phones. And I had these wonderful actors and they would always react in the moment to what the student said and the way they said it. Mm. And so there were certain things that as a lawyer, I would think, oh, the student said this that’s fine. I would understand it. And, and the client would look completely confused or the student would say something in a way that was clear, but you could just see that the client bristled at it. And I could understand why, but I hadn’t listened to it with a client’s ears so much.

Marjorie (12:31):

And so I really learned how it was that changes in phrasing. It changes very much in sequence and the way, the way they communicated what they were, could be better or worse. And so it was doing that hundreds and hundreds of times and learning along the way and learning from actor clients a lot about how you identify, what makes someone’s voice or pacing effective. I learned those things from hundreds and hundreds of students. I wouldn’t call them volunteers. I would call them drafted because it was the final course exercise, but I learned it. And, and that’s what motivated me to write the book cuz I didn’t think it was written anywhere else in quite that way.

Stephanie (13:11):

Yeah, I didn’t think so. And it was such a gift to me when I read your book the first time, years ago, because I was like, wow, finally we didn’t, no one’s teaching us this. And so if we kind of dig in a little, the sense I got from reading your book, let’s just be Frank, most lawyers kind of approach client communication from the wrong place. Right. I mean, and what my takeaway was. So I, I see you thinking about it is I think lawyers think with our logical brain, like when I go to explain a result to a client, it makes sense to me that I’m like, well, we filed for summary judgment. This is what summary judgment means. We made four arguments. The first argument was this, they said this the second, you know, and we tend to kinda walk through this process and then at the end and we’re like, and you lost arguments two and three, but don’t worry. It’s still, and all the client hears is like, wait, what record scratch. We lost. What does that mean? And, and yet we’re sitting, we’re still explaining that this is a small piece of a larger puzzle, but maybe we’ve just kind of lost all of our credibility along the way.

Marjorie (14:14):

Well, that’s really interesting cuz when you first said maybe lawyers are approaching it from the wrong place. I thought you were gonna say something different <laugh> but yes. I mean yes to what you just said. So one of the things that I learned and that I write about in the book is that once you get to law school and you get through the first year in particular law school is about learning a language. And in that language and in the culture or in the context of legal practice, there are certain things that we just all take for granted that everybody knows or understands. So then if you were communicating with another lawyer, there would be no problem. So if you said to another lawyer, gee, I think I better knock down my settlement hopes because there was that witness, you know, who was deposed and was a disaster.

Marjorie (15:06):

The lawyer would immediately understand, oh I know why <laugh> mm-hmm <affirmative> but the client doesn’t necessarily see the link and they don’t really don’t understand much about process at all. And so you can’t assume that underlay of process knowledge, that would be there. If you were talking with another lawyer. Now I have to say, I’m gonna plug my other book if you don’t mind. Yeah please. No. So I, the one piece of that I teach that is not related to client counseling. That’s not in this book is on decision tree analysis. It is something I do also cover in my course. And the reason I say it is cuz when you said you just walked right into it, when you said there could be four arguments and we could lose on two of them, but still be okay here, although it might have an impact.

Marjorie (15:56):

That’s what you were saying. One of the things that I find is that when you are walking slowly and carefully with a client through what has happened and what might therefore happen, it’s really useful to have a visual. And so that’s the missing piece in some ways with the client science book, it’s maybe referenced in there, but it’s why I actually wrote the book on decision trees to say, you know, you could use these for client communication. It’s more than math. So, or it’s not just about the math that that’s a separate topic. Happy to talk about it another time. But yeah, I will say moving away from decision trees that in general, one of the things that I did learn and I think is said in the book is that if you are presenting something complicated to a client, you wanna get through to the end, you wanna say, well, there are these four things and this happened and then this and then that see <laugh>, that’s what you wanna say, right?

Marjorie (16:52):

You lose them at about step two. So when a lawyer is addressing or trying to explain a complicated series of issues or the way a certain motion might play out where some issues might stay in the case and some might stay out. One of those, we have a tendency to wanna say, well, I’m gonna get through the explanation and then the client can ask questions and I wanna get to the whole thing. So they see what the outcome is and <laugh> my experience is. And uh, my observation really is that the problem with that is that you can lose the client along the way mm-hmm <affirmative>. So it’s critically important. We think of it as breaking train of thought, but it’s critically important to be able to pause after each sub segment, each short paragraph and say, are you with me or questions and really check in and look at the client’s face.

Marjorie (17:48):

Cuz some people will tell you they have a question and other people just won’t, but nothing really went in. And so let the client clue you into what they get, what they don’t get, what piece of the process knowledge they’re missing and they would need to have filled in because I, I do tell my students that, you know, even after you read the book, <laugh> every explanation that you give is never going to be perfect. It’s just not. Yeah. But as long as you stop, take a look and make sure that you’re connected, you’ll be able to read or create space for the client to let you know what direction in what direction do they not understand this or what area or even if they get it, what’s bothering them about it. So as long as you check in, you have the opportunity to correct or make a slight adjustment in the way that you’re explaining things. But if you rush through you just don’t, you can’t,

Stephanie (18:46):

That makes sense. And so one of the things you, you specifically focus on is this idea of delivering bad news. Mm-hmm <affirmative> hard news. Nobody ever wants to deliver that <laugh> but are there some tips or some best practices that you could share with us that might help us as we kind of approach these situations?

Marjorie (19:04):

Yes. I mean, I, at some level <laugh>, you know, the reason I focus a lot on giving bad news is it’s the hardest thing mm-hmm <affirmative> I mean, you could do lots of communication, things, not very well deliver good news and your client will still be fine. <laugh> that? They’re not gonna go find another lawyer cause you have great news. So the challenge is hard news. And I will say that some of the advice or the literature and research about this comes out of the medical field. So it’s interesting for me cuz I learned what worked and what didn’t work with both actor clients, and sometimes in a mediation setting myself. But then I found out that the medical literature was all over it cuz doctors not infrequently have to deliver really bad news. And yeah, so the tips are number one to preface. So if you are going to give someone bad news and bad news could be you lost, but actually it’s even more important.

Marjorie (20:01):

I think to be skillful about giving bad news when the client still has an opportunity to make a decision that could make that bad news, not so terrible, that’s when it really matters. So anyway, your goal is to make sure that the client really understands the bad news, how it’s bad, why it’s bad and what they might do and not say, well, if I got another lawyer, they might give me better news. So they have to both believe that you’re competent and that the bad news is not from lack of diligence or rep zealous representation on your part. So going back, the first thing to do is to preface and to give someone a little bit of a warning because bad news causes a, you would call it a disorientation, like what? Huh. And so you wanna say, be able to say to somebody there’s been a development in your case, that is of some real concern, something that will clue them into the idea that what’s coming is they need to be prepared for.

Marjorie (21:01):

So that’s the first piece of advice and then you do need to deliver the bad news in a tone that’s sympathetic or empathetic, but straight, so waffling or fudging just doesn’t help. So you can’t, so it doesn’t help for you to say, let’s say that you have a case where, you know, you really think that chances are strong, that this judge is gonna knock out this case on summary judgment. Um, that’s one of the examples that’s in the book and that would be a big problem. Your client doesn’t necessarily understand what that means, but they will. And so it doesn’t do you any good to say, well, you know, I mean there’s a little bit of a problem with this motion that’s coming up. It could, it could represent a little risk for us. Then the client says, oh, you know, I mean everything has problems and you know, we all have risks, so what’s the big deal.

Marjorie (21:49):

<laugh> right. And so I just can’t tell you how many I, how many times I’ve been in a mediation where I’m the neutral and the lawyer, the same kind of situation that cl there’s a big risk lawyers says the well, you know, I think you have a really great case. You think you have a really good, you have such a strong case. Chris, the summary judgment think post is a problem, but, but you have a really great case. And so there’s this mixed message, right? And let’s not be surprised that the client wants to hear the great case part and doesn’t wanna hear the big risk part. And if you have downplayed it in the, both the words that you use or the tone that you use, it means they’re really not gonna hear it. So it has to be done straight, no waffling, no fudging.

Marjorie (22:34):

<laugh> no making it better than it is. You can at the beginning say that what I’m gonna explain about the next step in the court is not gonna be welcome news. I do wanna tell you right at the outset that there are some strategies that we can employ to make sure this doesn’t cause a disaster. So you could give a, a hint that there might be a way out of the tunnel or at least partially, but it has to be straight. And then it has to be, like we said before, I think you have to pause. So you need to really sort of piece by piece slow because the person has to be able to digest it and ask questions. And the other thing I guess I would say is that, especially in a legal context, it’s not unusual for almost in the example that you give.

Marjorie (23:21):

It’s not unusual for you to be saying, I think we’re going to lose on this motion or we’re not going to be able to get our expert in or whatever it is. But there are always arguments on both sides because otherwise you wouldn’t be there. <laugh> so right. There are always arguments on both sides and the counterintuitive intuitive, but I think important advice is to present your arguments first. So you say to the client, look on this motion, uh, you understand that this is the issue and here’s the question the judge, or whoever’s gonna decide, or the jury here are the arguments that we will be making and you need to articulate them pretty well actually. And then say, but unfortunately here are the arguments that they’re going to be making. And the reason that matters, I mean, do you have a question about that while I follow my own advice?

Marjorie (24:15):

Or do you want me to keep going? No, it’s fascinating. I love it. The reason that you wanna do that. And I wanna say before I go into the reason is that I can’t tell you how many times I have observed real lawyers with their clients, where the client is facing a tough hurdle. I’m thinking of a, in particular of a non-compete case. I did a while back. And what all the lawyer does is emphasize here are the other sides, arguments and why they might win. And when you do that, there’s this little voice in your client’s head saying, yeah, but what about this? And he forgot about that. And that previously smart lawyer has now turned against me and isn’t very smart anymore. And so there’s this automatic resistance. Whereas if you start by saying, look, here are the arguments that we are gonna make about why this was not gender discrimination.

Marjorie (25:06):

Here’s what they are. I’m gonna argue this. And I’m gonna argue that. And I would say this, and I know that you are managing, you know, I’m going to, so I will do that now. Right? I’m that smart lawyer who is on the client’s side, who gets all the reasons that they think they’re right and is able to articulate it so well. <laugh> right. Okay. So that’s really important for them to understand that you know that and you can express it and you haven’t forgotten it and that’s their perspective. So when you then say, that’s all true and I, if we go forward, that’s what I would argue on your behalf. Here’s the problem. Mm-hmm <affirmative> the other side is gonna make these arguments and then you do that. Now it’s harder for them to say, oh, that lawyer who was really smart and on my side a minute ago, isn’t anymore.

Marjorie (26:02):

It’s harder for them to say that. And it’s more convincing. And I, the other thing that if you can, you, can’t always, but if you can, to be able to say, look, here were the argument’s on our side. Now, here are all the reasons that I’m concerned about what they might argue. Here’s what they might say. And on balance, you know, looking at the case law or knowing, or looking at what this judge has decided or whatever it is, I think it’s gonna tip this way. It’s really powerful for the client to see and hear the lawyer, hold their arguments in one hand, the other arguments in the other hand and say based on my judgment, one never knows, but I think it’s gonna tip against you. That’s very powerful for the client to hear and sometimes convincing. So that’s my answer.

Stephanie (26:52):

Yeah. It totally makes sense. And, and it’s so simple when you say it and when you gave that explanation, I was sitting here and like, yes. And when I read your book and even today I’m reminded of this one conversation I had with a client once where I had to deliver some bad news and I can still remember in my mind, like where I was standing on my cell phone, it was a female client, a very smart person. And I used some silly sports analogy. I don’t know. Like I said, something like, you know, maybe we lost the quarter. We haven’t won the game. I mean, clearly I didn’t say that, but I was just trying to emphasize like, yes, we lost this piece. And I just remember the client saying, Stephanie don’t patronize me. <laugh> like, I just <laugh> using sports analogies, you know?

Stephanie (27:35):

Yeah. And it was, isn’t that funny? That’s just stuck with me now for all these years, we did end up winning. Ultimately I remember she apology cuz she really got on to me that night. Like it was the harshest. I remember our client really kind of coming down on me. Right. And so she eventually I do remember, and it was a, a nice moment where we won the case and she said, you know, I owe you apology. I was really nasty to you that night. And I, I appreciated it, but it it’s making me think of boy, if I bet if I could redo that, now I wanna redo on that conversation. I wanna be able to deliver this news to her and have her trust me as her lawyer and have the confidence and how we were gonna proceed forward and that it would be okay, which it eventually was. Right. But I appreciate what you’re saying because there’s this line. We have to walk with clients where we need them to trust us and find us competent and all of these things. And yet sometimes we have to give them really harsh news that they’re not going to like, and that’s what you uncover and, and in your work and in this book. And honestly, I just was so excited when I read it that I was like, every law student needs to hear this and all of us need to be taught these skills.

Marjorie (28:44):

I’m so glad to hear it. You’re preaching to the choir <laugh> or the preacher or something. You know, it’s interesting. The example that you gave, I would say that your client did you a great favor because she told you how she really felt, you know? And so the fact that she came down so strong, you know, is a big flag. The other thing, I guess I would say that’s interesting about the example that you gave is that there is this difference, right? You might care a great deal about your client, but your client is one case among many. It represents one case among many. And in many ways, what lawyers do with the judges and with the lawyer on the other side, who you might have worked with or against before, I don’t wanna say it’s a game, but it’s a, it’s an ongoing battle process that we’re in.

Marjorie (29:33):

But for the client, this is usually their only case mm-hmm <affirmative> and it takes over their world. And we don’t think about that so much, right? I’m not every morning at breakfast, sitting down with my husband and saying, oh, I dunno, what’s gonna happen with my case. You know, <laugh>, I’m not doing that. Right. I might say, oh gosh, I got five things lined up at the office. I might say, there’s this one in particular that I’m worried about, but, but it’s not, it hasn’t taken over my existence, whereas not in all cases, but for many cases being in a litigation or being locked, even if it’s not being litigated, being locked in a dispute, a legal dispute that you don’t control, right. Takes over many parts of the client’s thought many parts. It, it rents space, I guess they say in their brain and in their heart. And so if we don’t remember that, then we’re a little too, I don’t wanna say casual, but you know, then we might make a sports analogy.

Stephanie (30:34):

Right.

Marjorie (30:34):

But because we don’t check into where are they, what were they thinking and worrying about when they came, when they walked into the office, when we used to walk into offices. And so if we were tapped into that, you would never make the sports analogy. So actually one of the things I, I do say to folks is leaving aside the specific focus on bad news. I say this for mediators, by the way, cuz they have to connect with both sides. Mm-hmm <affirmative> is take a, and, and also for lawyers take a minute before you go into the other room or before the meeting to clear your head of whatever else is going on and just think for a minute, huh? What do I think might be going on for them? If you do that, every analogy that you use, every vocal tone that you use will be completely fine. Mm. But it’s failing to think about what’s going on for them and where might they be? That causes that disconnection.

Stephanie (31:32):

Yeah. So important. We’re gonna take a quick break to hear from our sponsors. When we come back, I wanna shift to one last topic. If you have a few minutes on the interview process,

Zack (31:42):

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Stephanie (34:10):

So we’re back and we’ve been talking about how to deliver bad news to client and difficult news, but you also teach a different communication technique, which starts right at the onset of, uh, representation, right? When we first meet the client and, and the importance of those first meetings, really, probably those first interviews. I feel like this is a, again, a topic we’re not really taught. And I get frustrated. A lot of people have that. Listen to this show, know that cuz cause one of the things I wanna hit on in a second is the fee discussion. Like you nailed, like when do we, like I get onto attorneys a lot. Cause I’m like, you guys, we’ve gotta start talking about money. Clients don’t understand what you say when you just throw out a retainer in an hourly rate, they have no concept of that. So no wonder they can’t pay you, you know, five months in when, when the bills are worth a car. So <laugh>, so I’m curious if you gave a few high, high level tips of what we could do better with those initial conversations with clients to set us up for success for a good representation, which is what ultimately everybody wants. Right?

Marjorie (35:14):

Yeah. You’ve really asked two questions. One is a more, well, one it has to do with how do we have an initial client interview and the other is more specific relating to fees. Then I’m happy to think about both of them. <laugh> I think that, and there’s some research that suggests that at least in a negotiation and, and I’m gonna count this sort of like a negotiation, the first five minutes really matter. It’s like a blind date, you know, mm-hmm, <affirmative> that first impressions matter now, is it not true that both in a blind date and in a negotiation and an initial client meeting, if you get off on the wrong foot, if you say something that’s a little off to the client right in the beginning, does that mean that there can’t be a recovery? No, but <laugh>, it’s a lot better if you start off.

Marjorie (36:03):

Well. And so one of the things that I’m a firm believer in is chit chat. I once had a students who said, professor Aaron, I really hate chit chat and I’m just not good at it. And I being so sympathetic, I said, well, we need to get over that <laugh> which is which, I mean, look, you are not gonna change yourself from a totally, not a chit chatter to a easy chit chatter. But to some degree, some conversation that’s not directly about the legal case can be important unless the client wants to get right down to it. But we are all comfortable with people who we feel something in common with. And so if I notice something about the tote bag that you’re carrying or the button that you’re wearing or something, anything that I can see a connection with, I might say, oh, look at that.

Marjorie (36:56):

You have a Cincinnati ballet tote bag. That’s so interesting. I’m a clutch, but my sister-in-law whatever <laugh> right. Or there’s always traffic in the weather and it sounds trivial, but those are such safe topics. It allows you to get a rhythm. I can hear, does this woman speak very carefully or precisely, or does she, I can get in sync with you a little bit. And that is tremendously helpful for building trust. It just is. So I’m a favor, a believer in chit chat in at the beginning and a really open approach to body language and mirroring to some degree the client, the pace of speech and things like that. Those are things that actors do to get in sync. And I’ve learned that. And I think most of us do it intuitively, but it’s useful to think about it a little bit, right? At the beginning of any interaction and particularly including a client interaction, because remember it’s complicated, you are going to be on your side. You’re both trying to figure out whether you can work well with each other because as the lawyer, if you find the client to be impossible or the communication to be just not effective, it’s not gonna work for you. And so, and it’s a relationship where at least in most instances, you’re going to be asking for money or getting paid or at least talking about that. And so the more that you can build some early rapport the better. So that would, is that an adequate answer to the first part of what you

Stephanie (38:27):

Said? Yeah, I think that’s perfect. And I it’s good to remember cuz sometimes we do tend to just, I, especially on online meetings, when I’m going from zoom to zoom, to zoom in today’s world, I have to stop and remember to do that chit chat and to do that little rapport building, even if it’s with my team member, because sometimes I’m just going from meeting to meeting and I’m like, okay, what’s next on the agenda. Let’s go. And they’ll be like, what, well, how are you doing today, Stephanie? And I’m like, oh yes. Great, thanks.

Marjorie (38:53):

I have to, well, yeah, actually I think it’s almost more important in a zoom meeting because in an in-person meeting, there’s certain sort of chemistry in the air. You can feel it if someone is tense or if someone is whatever’s going on, you can almost feel it in the breathing pattern. We don’t think or talk about those things. But we do, we do perceive. Whereas if it’s just, you’re going quickly to someone on a screen, it’s harder to read that stuff. I know that I taught as everybody else did. I taught all online, including ki the client science course last year and learned that you just had to have some check in time, you know, with the students who came on first and then a little after I will say, um, it’s not a plug for anything involving money, but I do have a website called client science course.com.

Marjorie (39:44):

And the reason I raise it is that I did write what I think of as a supplemental chapter on initial client interviews, which is available for free as a PDF on that site. And it’s actually downloaded, I think, more than anything else I’ve ever done because it’s useful and, and you don’t have to, it’s not part of some other textbook, so <laugh> that you have to pay for. So anyway, that is if you wanted specific advice for the initial client interview that exists on that website. So that’s all I have on that. Unless you have a question I would move over to feed.

Stephanie (40:19):

Yeah. I mean, I would just encourage everyone to check it out because I’ll share one of my takeaways from reading that was this idea of sometimes the first thing a client says is the most important and I’m not gonna get it in your words. So go read, go read the professor stuff, books <laugh>. But I saw it with a teammate today who was asking about something with her role. And I was like, wait, is she asking about this or this? Because the way she framed the question gave me a clue to what I thought the underlying issue was. And so I used it today after having read it, you know, yesterday I was like, wait, what’s the real issue here. And, and you talk about that in the materials. And I thought it was very helpful. So I mean, there’s so much stuff you teach in this stuff. I’m happy to plug the book and all the materials because this is great stuff, but yeah, let’s shift to

Marjorie (41:06):

The, actually I, let me just go back in on that. Cause I had forgotten it. Yeah. You know, I was continuing to teach my course as I was writing the book and the bit about the very first words out of somebody’s mouth. I mean, you could be asking about the weather and they say, oh God, I had a slog through so much to get here, whatever it is, the very first words, whether or not their response, just the, just the first words was something that I learned. I think I learned it from some of the medical literature. That’s what they’re teaching at least some doctors. And there was another, uh, wonderful writer. I’m gonna forget the article, even though it’s cited. Um, <laugh> that talked about that as an issue. And so I started noticing it in lots of context, including the ones with the client actors and it proved out yeah, there would be some little thing that you thought was unrelated and it was often a clue to what was really going on with the person I thought that was fascinating and, and useful. So I’m glad you liked it.

Stephanie (42:07):

<laugh> yeah, me too. Okay. So then nobody likes to talk about money, but we need to do it. So any advice you have here for us?

Marjorie (42:14):

Yeah. I mean different areas of practice and different sort of client pools, I guess I would call it are populations are gonna have different expectations or awareness regarding fees. I mean, that’s true. Right? So there are some context in which, you know, it’s a corporate client <laugh> that they know with the drill, you know, they’re representative of the comp there’s some cases where you don’t need to worry about it so much, but there’s this tension between, well, I need to talk about fees because we need to make sure that this is gonna fly financially, but it’s really awkward to start a relationship. Oh, we have chit chat. <laugh> it’s right at the beginning. And now I say so about my fee. <laugh> right. And it’s like, I’m just only in this for the money and you just represent an income stream for me. So let’s talk, but trust me, I’m your lawyer.

Marjorie (43:11):

That’s really awkward. But at the same time, the other problem is that if I wait to raise the fee issue until the end of the conversation, then there’s some, and now I’ve built up trust and I’ve heard about your case and all that stuff. And then I say, let’s talk about what the fees are. There are some clients for whom they will be worrying about it and thinking about it the whole time. Yeah. And that doesn’t really help you at all. So my, um, and this is definitely one that I played with with my students in my class. We played around with it and what we, uh, least I, and I think we came up with was the idea. You always have to play it by ear, but one approach, which also provides a certain amount of, uh, respect for the client is to say if at the beginning of the meeting, you set forth the very rough agenda, people like that.

Marjorie (44:06):

So in when I do a meeting of this sort, or when I meet with a potential client for the first time, I need to hear a little bit about just what sort of, you know, what’s going on, what sort of case it is. But I really, as a matter of course, I need to explain the attorney’s client privilege. And at some point I need to talk about fees. I can do that early, or I can do it after I’ve really heard the whole story. So you give them a choice about what they wanna do, but I would basically introduce an agenda. Maybe I don’t even like the way I just did that is to say, uh, when I meet with a client for the first time, there are certain things I, I need to cover, but one is the attorney client privilege. It’s important that that’s clear. And then I really do need to get your, the whole story. I wanna hear everything about what brought you to my office. Now I can talk about answer any questions or talk about a fee arrangement before that, or I can wait till after that, whatever it is, you need to get it out there. And then I give them the choice.

Stephanie (45:02):

Yeah.

Marjorie (45:03):

Oftentimes if it’s a case that you have a feeling is gonna end up being on a contingency, and if that’s part of your practice, I’ll always say, well, we can talk about fees now or later. And the client can say, uh <laugh> I don’t know how. And you could say, well, given that I know that this is case involves I don’t employment discriminate, you know, something that happened at work, um, a possible claim against your employer or a personal injury case. There may be an opportunity for us to arrive at a fee where you wouldn’t have to take so much risk or outlay so much money at the beginning, but let’s hear a little bit more, you don’t wanna commit to that at the beginning. Right? You really don’t wanna do that cuz you know, never know, but you can at least suggest that there’s a, a certain type of fee arrangement that would work. Yeah. But I guess the only other thing I, I would say, oh, the exception is it’s a matter of contractor. I like, if, if this is a kind of case in which you would be charging for the initial consultation, then you need to say that up front <laugh> you just do. Right. Right.

Stephanie (46:09):

And hopefully they had already heard that and they knew going in that they were gonna be paying to be there.

Marjorie (46:14):

Yeah. I mean, normally there are a couple other things I would say that go around just the oral communication. One is on the website of even the really tiny for everybody has a website. Now, if you have a consultation fee, you can list that if there are alternative fee arrangements, you can talk about that. You can also have information. And should I think about attorney client privilege? You can have little brochures or something when someone walks into the office and you can ask them if they have any questions. I mean, I would say that at least with, with respect to attorney, client privilege, that if someone says I would still wanna review it a little <laugh>

Stephanie (46:53):

Yeah. Yeah.

Marjorie (46:54):

You

Stephanie (46:54):

Know, that makes sense. And, and honestly, I was remembering, as you were talking, I received similar training in the sales training once, right. Where they said, you know, people come in and they have this expectation. So when we do calls for our paid coaching program, cuz that’s one of the things we do here at lawyers, we coach lawyers and sometimes at the beginning of a call say, look, I I’ve done this a long time. I, you probably have three questions. How long is this gonna take? Does it work? And how much is it gonna cost? Hmm. And I need two hours a week. Of course it works. It’s gonna be 8 49 a month for six months. We could talk about the payment plans. You know, I could see stuff. Yeah. And, and now we’re gonna dig into it. And so it just kind of takes it off the table.

Stephanie (47:35):

But I could see a lawyer, especially if you’re doing flat fees and things to, even if you don’t get into the amount yet you say, listen, you know, I could even see the front end. I bill a flat rate there’s payment plan options. We’ll discuss all that in a minute. But first I’d like to hear more about what’s going on with your case, but you just kind of deflate the person a little bit from that worry that they have, cuz they don’t know like they’re going into this. And they’re like, is this gonna be a small car or a luxury boat? I mean, whatever. I don’t know.

Marjorie (48:02):

I mean, or you could say we have this rates and this and that. Usually we go into details about that at the end of a session. But if you want more information on it, now I’m happy to do it. And so you let them make that choice. Yeah.

Stephanie (48:14):

That really makes sense. Well, we have covered so much ground here, but it doesn’t even begin to, I mean touch all the, all the information you cover in your books and on your course materials. So I do encourage everyone. We all deal with clients, no matter what kinda law you’re practicing. And I just thought this was such fascinating work that you’re doing and good work. So I just appreciate you coming and talking to us today.

Marjorie (48:39):

I appreciate that. You seem to like it so much and find it valuable. There’s nothing that when you write a book, which is a, a bit of a slog, you hope that someday it will be of use. And so you’re telling me that it is, and I very much appreciate that.

Stephanie (48:53):

Awesome.

Announcer 1 (48:56):

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