January 2004

How to say "No"

by Jeff Tolman

I asked a mentor with 50-plus years at the bar, what's the main difference between lawyers who enjoy the practice of law and those who don't.

"That's easy," he said. "The ability to say 'no.'"

Our work, as a whole, is interesting, he explained. But bad clients and bad cases are the cancers in our practices. It is the unpaid, unappreciated work that discourages and, in the end, demoralizes attorneys.

Sure enough, nearly every client or case I had trouble with, I could have — should have — seen as a problem in our initial consultation. Unreachable expectations. Quibbles about fees. Arguments with, or second-guessing, everything I said.

Except for public defenders, the attorney-client relationship is consensual. Bad clients are mostly self-inflicted wounds.

But it's hard to say "no" to someone who has asked you to help with a problem. The client must trust us and believe that, through our education, experience, and innate intelligence, we can untie the knot causing discomfort. "Sure, I'll help!" we say.

Shortly, angst begins. The client isn't believable. If you were betting your kids on the outcome, you'd bet against the client. Looking at the case, and the client, with clear eyes, what do you do?

The art of referring cases is grossly underestimated. How we send away clients we don't want, and yet maintain them as potential referral sources, is an important part of any lawyer's practice.

I have found five effective methods of referring without offending the client:

1. There are lawyers with more experience in the area. "If I were the best lawyer for you I would take your case, but your need for the best lawyer is more important than my interest in having you as a client. Joe Jablonkenstein's a local lawyer who's had more cases in this field than I. Go to him. He'll take good care of you. But if you, or your family or friends, need assistance in other areas, please give me a call."

2. There are younger lawyers who can handle the problem cheaper. "I can certainly handle your case. You should consider, though, Mary McDonnally, a fine young attorney down the road. Her hourly rate is less than mine, and she does good work. I think you can get a similar quality of work for less money. But if you, or your family or friends, need assistance in other areas, please give me a call."

3. The last client with a similar case didn't pay. "I had a case similar to yours a couple of years ago. My client left the firm with a significant account receivable, despite my good work. Our policy on these cases now is to get all our anticipated fees up front so we don't end up in the same dilemma. Therefore, based on the firm policy, I will need you to deposit $15,000 into our trust account before I can go forward. Of course, other firms may not have the same experience, or policy. In other areas we can be much more flexible regarding payment. In this type of case, though, as Jay Foonberg says, it's MUF — money up front. But if you, or your family or friends, need assistance in other areas, please give me a call."

4. I have a conflict of interest. "I would love to help you but Zandra Zlatos is a commonly used expert in this area, called by persons in your opponent's position. I've represented her. If they call her, I would have to withdraw, and you would have to retain another attorney. Rather than take that chance, I think you should see Morry Morrena right from the start. But if you, or your family or friends, need assistance in other areas, please give me a call."

5. I had a bad experience in this last case I took like this. "I had a case very much like yours a couple of years ago and did not fare well. Because of that — and having nothing to do with the merits of your case — I am hesitant to take another case in that area. You should see Jennifer Roof down the road. I understand she has had good results in this type of case. But if you, or your family or friends, need assistance in other areas, please give me a call."

Certainly some moralist reading this will say, "be honest." Sure. I hear it now: "Potential Client, I don't believe a word you have said since we met. You have been perpetually whining that I may actually charge you the going rate for the work you want me to do. And I will. Though this may not have crossed your mind, that's how I pay my bills and feed my kids. Your case is mediocre. As a client you are less than that. Go away. Life is too short to take you as a client. See-ya, wouldn't want to be-ya."

I think not. Instead, lawyers should refer out such clients in a kind, gentle, generally truthful way that will get the clients a more empathetic counsel and allow them to refer their family and friends who may have better cases. By learning how to say "no" in a painless way, each of us can have practices and clients we enjoy.

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