You probably do not like when a doctor treats you like a flu case, and not like a human with flu symptoms. A doctor who sees something more than a case in you will recognise that you also have other symptoms and therefore you do not have a flu, but another disease that requires different treatment. Recall your experiences with doctors and you will know how the client feels when talking to a lawyer.
The opposite of treating the client as a case is to focus your efforts on what the client expects (not what you think he or she expects) and to treat the client as an effective collaborator (not like a helpless person you can save). You do not have any special knowledge about what your client should want, however, each client has to live with the results of your work long after you forget about the case. Clients are not helpless, and even if they did, you could rarely save them. You should better look at it like this: a client is a capable person who hired you to help him or her achieve the goal.
A client who has no experience in working with lawyers is very different from a client (usually an entrepreneur) who regularly cooperates with lawyers. An inexperienced client can show more concern and less understanding of how lawyers work. An experienced client will have more precisely defined goals and would rather employ a lawyer as a specialist to perform a defined task.
A client who wants to get help in a dispute (eg in a case of redress) may be very different from a client who wants to get help in completing a transaction (usually in negotiating a contract). If the transaction is important, the customer may experience some stress. This stress will turn into satisfaction when the transaction is successful. However, the client in the dispute will probably experience severe stress and anger.
2 models of collaboration
Imagine two pictures:
In the first of them, the lawyer sits behind a large, wooden desk with a green lamp, and the client sits in a chair on the opposite side of the desk. When the client speaks, his job is to provide the information that the lawyer asked for. When a lawyer says, he serves the client with professional advice and judgment.
This is the so-called traditional model of the lawyer - client relationship: we have a passive client protected by a powerful professional.
In the second picture, the lawyer and the client are sitting together, eg at a conference table. They brainstorm, review documents and discuss which of the several possible strategies best meet the client's goals.
This is the so-called participatory model of the lawyer - client relationship: here both sides are active. The lawyer assumes that he does not know all the answers, and the active participation of the client, thanks to often better knowledge of facts, increases the creativity of activities.
A client who prefers a traditional model may experience less fear by addressing the problem to a professional. He can almost not think about the case, while the professional will work on it. Then the client follows the instructions of the professional. Such a client would rather trust charismatic, authoritative professionals.
A client who prefers a participative model can reduce his or her fears by actively engaging in solving the problem. This client will be easier to trust professionals who have an open, understandable problem solving style.
Advantages of the participative model
Lawyers are people, they make mistakes, and an actively involved client will catch at least some of them before they cause damage.
The client naturally has more knowledge about his own needs than his lawyer, hence lawyer and client cooperation will give better results than just the lawyer's involvement.
The participatory model shapes the client's awareness, because it makes him the contractor, who is responsible for his choices
This model reduces the client's anxiety because the client is not kept away from the course of events.
This model protects the lawyer against possible allegations of the client regarding alleged mistakes, because the main reason for such allegations is the lack of legal knowledge and the related unrealistic expectations of the client.
This model promotes and strengthens personal interpersonal relationships, which is an important advantage in today's society, where cordial professional relationships are becoming rarer.
Disadvantages of the participative model
Some clients feel insecure when they have to think about their problems - they prefer to hire a specialist and forget about the case.
A paternalistic and dominant lawyer will be frustrated by the lack of control as well as dissatisfied with the participatory relationship.
A dominant but subtle lawyer can manipulate the client, reassuring him in thinking that the relationship between them is participatory, while in reality it is not.
The participatory model is more expensive. It takes more time, and time is money. It also requires more effort - the involvement of energy and emotional intelligence.
How to distinguish a client who prefers a traditional model from the one who prefers a participatory model? Rather, it is not worth asking at the first meeting: "Would you prefer service in a traditional or participative model?" Hardly any client would be able to answer this question, even if you could explain what these terms mean. A better method is to start on a participatory basis and switch to a traditional relationship if you realize that it will make the client happy. I think that the participative model should be the norm, and since the traditional model does not entirely fit the characteristics of younger generations.
Who is the boss here?
In the traditional model, technical and tactical-legal matters, such as the jurisdiction of the court, the selection of evidence and the selection of witnesses, and the method of argumentation, are decided in principle by a lawyer.
In the participative model, some of these decisions are made jointly by the lawyer and the client, assuming that relatively often the client shows valuable knowledge of the respective issues. Defining the purposes of legal representation is the task of the client who decides whether to accept or reject the opponent's offer in the negotiations, to admit or refuse to plead guilty in a criminal case, or to testify or refuse to submit.
However, all key decisions should be taken by the client only after the lawyer explains the advantages and disadvantages of given alternatives, as well as their costs and risks. The final decisions that the client is entitled to take should be made by the client. However, even when the lawyer can make an independent decision, it is advisable to consult the client, because he can support the lawyer with additional information or thoughts, or express preferences regarding how to deal with the issue.
1. the client may have information that changes the actual state of facts;
2. the proposed action may cause difficulties for the client or for someone to whom the client would not like to harm;
3. the client may not want to pay for the proposed activities.
Suppose you want to make an application forcing the opposing party to provide certain documents. Some lawyers would consider this a hyper-technical issue that they would never consult with the client. Imagine, however, that you are calling the client:
Lawyer: [after describing the request] I wanted to mention it to you just in case.
Client: Moment. Could you tell me again what documents are going on?
Lawyer: [doing it]
Client: I think I have seen these documents and I think that there is not much in them that would result from them.
Lawyer: Because you're not sure, it's safe to make this move. We'll see what's in them when we get them.
Client: I think I know someone who has a copy.
Lawyer: Full copy?
Client: I think so. I'll call him soon.
Such conversation can change a lot. The lawyer is like an elephant in a porcelain store. The elephant may not want to break the porcelain, but with one unintentional movement he is able to smash something valuable. Using a routine representation method, a lawyer has many opportunities to accidentally harm a client or someone who does not want to harm a client. Thoughtful lawyer is an elephant who wants to leave the composition of porcelain, without making unnecessary damage. Frequent consultations with the client are invaluable here.
So if you make a mistake, make it, but AFTER consulting the client. Consultation will not only improve your chances of getting good results, but also reduce the risk of friction between you and the client. Lawyers who devote time and strength to meet the client's thoughts and feelings are less likely to be confronted with claims on malpractice than those who do not, regardless of the number and weight of the mistakes actually made by them. The client will rather assess how you represented him than if you won the case. Give answers to customer questions understandably and comprehensively. And if your client has technical or tactical preferences, follow his preferences.
The head of the relationship is the one who employs and dismisses, and therefore the client, not the lawyer.
You may also like:
J. Osiejewicz (2019), Prawo do komunikacji między klientem a prawnikiem - atrybuty modelu partycypacyjnego, in: J. Jaskiernia, K. Spryszak (red.), Polski system chrony praw człowieka 70 lat po proklamowaniu Powszechnej Deklaracji Praw Człowieka. Osiągnięcia - bariery - rozwiązania, Toruń 2019, p. 413-425.
D. Binder, P. Bergmann, S. Price, Lawyers as Counselors: A Client Centered Approach, West Academic Publishing 2011.
J. Cunningham, What Do Clients Want from Their Lawyers, Journal of Dispute Resolution 2013/1, p. 146.
H. Sommcclad, English Perspectives on Quality: The Client-Led Model of Quality—A Third Way?, University of British Columbia Law Review 2000/33, p. 503-505.