Wisconsin
Lawyer
Vol. 80, No. 9, September
2007
Help Your Client Separate Emotion from Logic
and
Reasonable Expectations
by Nerino J. Petro Jr.
Dealing with unreasonable client demands during settlement
negotiations is one of the most challenging issues a lawyer can face in
representing a client. In
these situations it is easy to lose sight of the fact that not only do
you owe professional obligations and responsibilities to your client,
you also owe to the opposing party
and counsel the duty to act in good faith and to deal fairly.
Unfortunately, there is no single correct way to deal with a client who
is making unreasonable
settlement demands.
Nerino J. Petro Jr., Northern Illinois 1988, is the advisor
to the State Bar of Wisconsin Law Office Management
Assistance Program (LOMAP). He assists lawyers in improving their
efficiency in delivering legal services and in implementing systems
and controls to reduce risk and improve client relations. Visit the
Law Practice Management area at www.wisbar.org regularly
for practice management guidance. You can reach Petro at (800)
444-9404, ext. 6012; PracticeHelp@wisbar.org.
I recommend that you examine your relationship with this client. If
this client has been unreasonable throughout the representation and has,
in your opinion,
been more trouble than any potential fee you will receive, the correct
course may be to withdraw from the representation if you can do so
without running afoul
of applicable professional conduct and court rules. If this is the
course you decide to take, then you also need to improve your skills to
identify potentially
troublesome clients from the start so that you avoid similar
situations in the future. If this client is not otherwise troublesome,
then consider one of the following options to try and
help your client see the problem from your perspective.
One option is to try and determine what is motivating your client to
seek the unreasonable demand. Then, use your skills to fully explain the
issues and
concerns that you have with the client's settlement position. It may
be helpful to create a diagram to show the client what, in your
professional opinion, are the
potential outcomes of the matter, including best-case and worst-case
scenarios. Add to this diagram what you think a favorable and realistic
outcome would be based on
your professional and personal experience, knowledge, and
interpretation of the opposing party's position. It is critical that you
explain the basis of your position and
how you reached it. Clients often are unable to separate emotion from
logic. You, as an attorney, must help your client see the difference in
outcome if emotion is
allowed to overrule logic and realistic expectations.
Another option is to come at the problem from an oblique approach
rather than head on. Start by reviewing why the client originally came
to you, including
your reputation, experience, and knowledge. Discuss whether the client
has been happy with your advice and efforts on his or her behalf to date
in the matter. If the
client has taken your advice so far, then ask what has changed so that
the client doesn't want to take your advice on the issue of what is a
reasonable settlement
demand. Often times, this method will help the client "see the
light."
If none of these methods work, you must decide whether to continue
with the representation or to withdraw. Ultimately, it is the client's
right to decide what
amount he or she is willing to accept in settlement. You have the
responsibility to advise your client and assist your client in
evaluating what a realistic bargaining
limitation should be, but if the client rejects your recommendations,
then this is the client's decision to make. If you elect not to
withdraw, then you need to remember that it is
in fact your client's case and your client's money that ultimately is
at risk.
In all of the scenarios I've discussed, there is one thing that you
absolutely must do:
Document. Follow up any discussion or meeting with your client with a
letter reviewing the pertinent facts of the meeting, your
recommendation, and the client's decision. Include a statement
confirming that you respect your client's decision
and that as the client's attorney you will continue to use your best
efforts in accordance with the rules of professional conduct to advance
the client's position.
Nerino J. Petro Jr., Northern Illinois 1988, is the advisor to the
State Bar's Law Office Management Assistance
Program, Practice411TM. You can reach him at (800)
444-9404, ext. 6012;
PracticeHelp@wisbar.org.
Wisconsin
Lawyer
