By Jim Calloway

Communication is something we all do every day. Some days we do it better than others. We have all had the experience of making some statement we immediately wish we could take back. Most of us would admit we could invest some time improving our communication skills. Managing your professional communications with clients is a critical skill and business process for lawyers today.

We have all heard the truism that the greatest single source of complaints against lawyers is failing to communicate. This used to largely mean failing to return phone calls. But now, as readers are aware, there are numerous technology-based paths a client can use to communicate with you. The fact that there are so many methods of communication can make tracking and responding to client inquiries more challenging. It is appropriate to limit the clients’ use of some of these methods. Just because a client first contacted a law firm via its Facebook page doesn’t mean it is appropriate to use Facebook Messenger to communicate during the representation.

Bad or nonexistent communication with clients has many other negative consequences. If a critical phase is underway in litigation and the client doesn’t get a response to their inquiries, a client’s attitude can rapidly go from offended to angry to worried that something has gone wrong with their legal matter. The client may forgive the communication failure, but they also may not forget. Damaging the bond of trust between attorney and client is something we all want to avoid. If the client feels they have been avoided and ignored at times during the representation, the client may be more skeptical of the lawyer’s recommendation about the resolution of the matter.

Those who investigate attorney misconduct are well aware that lengthy gaps in updating clients are often a symptom of a deeper problem. Whether it is research revealing the legal theory of the case is problematic or something worse, like a statute of limitations or court deadline having been missed, allowing the client to become frustrated or even angry with the lawyer just makes the situation worse. Negative news must still be communicated promptly. So, let’s cover some ways to improve your law firm’s client communication.

ALL SIGNIFICANT CLIENT COMMUNICATION MUST BE DOCUMENTED IN THE CLIENT FILE

It may not be possible to be perfect at that as sometimes we advise clients at nights and weekends by phone or run into them unexpectedly in public and discuss their matter. Some omissions in documentation will occur, but you do want to strive for perfection. The simple fact is a lawyer who handles many matters for many clients over many years will not be able to remember the details of every matter. That’s why lawyers have long maintained client files containing the documents associated with the case.

A lawyer needs to review the client file for the language in contracts, correspondence and other documents. It is unlikely you will always recall accurately the details of every phone conversation or personal discussion with the client unless you have good notes in the client file. A lawyer will handle many legal matters over a career. The client may only have one legal matter. Should a dispute later arise, the client will have very clear memories of every conversation with their lawyer about their divorce case or their neighbor suing them. If you believe the client is not recalling the communication accurately, documentation in the client file is your best, and sometimes only, defense.

We must communicate with the client during representation to assist our client in making good, strategic decisions. We must document client communications so we and others working on the matter in our law firm understand the matter’s status. We must also document client and third-party communications in the file for our own self-protection.

DELEGATION OF COMMUNICATION TASKS CAN IMPROVE EFFICIENCY

There will be times when an important project has to be completed, or there are other reasons why you cannot return a client’s telephone calls. If your law firm employs secretaries or legal assistants, they can assist you with client communications as long as they understand the principle noted above – if they don’t document their communication with the client in the client file, then it is like it never happened. Often, a good assistant can handle some of these returned calls completely, such as a client who isn’t sure of a court date or deadline. These are precisely the type of communications that you want to document in the client file. If the client fails to make a court appearance, seeing that someone from your office discussed the date with them personally last week brings a measure of comfort to the lawyer even as the lawyer deals with the situation.

Digital communications like emails, text messages and voicemails provide an accurate account of communication, but these are only valuable if one can locate them when needed. So, most of these need to be retained in some manner. Some things can be printed out to be included in a traditional paper-based client file, but some have to be retained in their native format.

I have noted before that enterprise texting tools, like ZipWhip, can be used to retain all text message communications. These tools also provide the benefit of allowing others to log in to assist with managing text messages. Law firm websites that have a “text us” feature on their website most likely use enterprise texting tools with staff members assigned to check the “inbox” at the beginning of each day and during each day. Practice management software tools make it easier for everyone working on a client file to document their communications easily.

WHAT IS THE LAWYER’S VALUE?

We provide legal services and solutions to problems based on our knowledge and training. Legal services often relate to the intangible. Court orders and other legal processes are often not well understood by our clients. Often, the value of our services is demonstrated through our communication with our clients. We listen to the facts of the situation and advise them of the legal challenge and our proposed solution. If your client is a business, its assistant general counsel may understand the legal challenge well. But for individuals who are hiring a lawyer for the first time or do so only infrequently, it is critical to provide them with brochures and handouts and other material to take home to review after they have retained you. These materials should generally cover the client’s type of legal problem. In some situations, the legal problem is obvious to the client (e.g., “I got arrested and don’t want to go to prison.”), but those clients still need clear reminders in writing about what they are supposed to do and, often more importantly, what they are not supposed to do.

Stress on the part of a receiver of the message is one of the classic communication barriers. The more stressed one is, the harder it is to recall a conversation that took place the previous day – or week. The types of matters that bring individuals to see a lawyer are often stress-causing events, such as a death in the family, being sued, being arrested, being terminated from employment or being injured in an automobile accident.

Handouts that these clients can review later to refresh their memories of your initial advice are very important. These should cover general information and frequently asked questions. All such brochures and handouts should contain contact information for the lawyer or law firm, including the website address. While the point of these communication tools is to assist this client, if you do a good job with your handout or brochure, you should not be surprised if the client shares it with a friend or relative who may become your client themselves in the future.

USE SIMPLE AND CLEAR LANGUAGE

For consumer clients, use a middle school vocabulary level to improve readability. Avoid legal jargon unfamiliar to the general public when you can, and when you must use it, explain what these terms mean. Lawyers like complete detailed and complete explanations, with caveats if they are needed. Today’s consumers like it short and sweet. If you are going to give today’s client a multipage handout, try to make certain the most critical information is on the front page.

APPRECIATE THE IMPORTANCE OF NONVERBAL ASPECTS OF COMMUNICATION

If you have a limited amount of time to return many client phone calls, be aware that while you have many matters, this may be the client’s only matter. Take a breath and focus between each call when returning several client calls. Avoid sounding stressed or rushed on the phone with clients.

Make certain your staff understands you should only be interrupted while talking with the client in your office if there’s an emergency or you receive communication pertaining to the client’s matter. Even if the client is understanding, interrupting a client meeting to take a call will be taken by some as they were less important to you than the caller, at least at that moment.

AUTOMATING CLIENT COMMUNICATION

There are now many tools that automate client communication. These tools can be very useful, such as setting up text message reminders before court appearances or client appointments with you in the office. But building good form letters for client communications is another great way to “automate” communication. Building checklists and workflows should result in many situations where when task #3 is completed, client communication #4 is automatically prepared for delivery. These should reiterate what has been accomplished and the next step.

WHAT CREATES UNHAPPY CLIENTS? VIOLATING THEIR EXPECTATIONS

A critical part of every new engagement or initial client interview should be setting reasonable expectations for the client, both in terms of potential results or resolutions and in terms of the time frame it will take to realistically accomplish the legal work. So, take some time to help the client have realistic expectations, both about the task ahead and the way your law firm operates. Take a few moments to explain that you will not always be available to take their phone calls or answer emails, but your policy is always to return them within 48 hours (or whatever your policy provides). Explain that your assistant may be available when you are not. If it is going to take a year before their matter can be heard, make sure the client understands that before they leave your office (or you close the videoconference). Always give your clients the opportunity to ask questions at the close of any one-to-one meeting discussing their case.

Make sure you stress to all your staff the level of friendly courtesy they are expected to display when dealing with your clients, even if the client is sometimes not having their best day when communicating with them.

BILLING IS ALSO A CLIENT COMMUNICATION OPPORTUNITY

The late J. Harris Morgan authored the ABA book, How to Draft Bills Clients Rush to Pay. In those books, the theme was that narrative statements in client billing should demonstrate both the value to the client and effort on the part of the lawyer. Today, we also note there are some clients who pay more attention to their bills than other communications they receive from the lawyer. So, don’t miss out on this communication opportunity.

CONCLUSION

“The single biggest problem in communication is the illusion that it has taken place,” is a quotation attributed to George Bernard Shaw.

While you will never know exactly what others are thinking, using the tips above will give you a better opportunity to make sure your client understands their legal matter and what your law firm is going to do to resolve it. Documentation provides the lawyer with a record to refer to should the lawyer’s services or communications with the client later be brought into question.

Mr. Calloway is OBA Management Assistance Program director. Need a quick answer to a tech problem or help solving a management dilemma? Contact him at 405-416-7008, 800-522-8060, jimcatokbar.org or find more tips at www.okbar.org/map. It’s a free member benefit.

Originally published in the Oklahoma Bar Journal — April, 2021 — Vol. 92, No. 4