Brian Tannebaum discusses one of the most curious questions confronting a lawyer at My Law License. Raised by Lee Rosen at Divorce Discourse, he asks why crappy lawyers have happy clients.
I know one personally. She’s a terrible lawyer. She can’t read and understand a court opinion. She misreads statutes. She’s an embarrassment in court. Her pleadings are poorly drafted. Her correspondence is filled with errors. She says things in chambers that make her look like an idiot. Her objections are overruled. Her court appearances are dominated by illogical arguments.
She’s a really crappy lawyer.
Her clients, however, love her. They refer business to her like crazy. She spends nearly nothing on marketing and is making a freaking fortune. She can’t see a new client for weeks because she is solidly booked.
How many lawyers can say that they are booked solid for weeks? How many lawyers can say that clients love them? How many lawyers suck? Tannebaum breaks it out:
We all know that clients hire lawyers for the strangest reasons. Something, one thing the lawyer says or does can determine the client’s happiness with the lawyer. In the criminal practice we all experience the difference in the client who barely shakes your hand when you win his case, and the client who hugs you after you lose his case and before he’s shipped off to jail.
From a client’s perspective, the definition of a “crappy” lawyer is completely different from that “within” the profession.
There has been an ongoing discussion, if not dispute, about the ability of clients to distinguish competent counsel from likable counsel in making the determination of who to retain. Bennett has long argued that, through a personal meeting, clients can tell. I’ve argued that they can’t, and frequently choose a lawyer for all the wrong reasons. Bennett argues that likability and competence are connected:
“Likability,” says Scott, “bears no connection to the lawyer’s skillset.” I disagree. Likability bears a great connection to the lawyer’s skillset — criminal defense trial lawyering is about communication, and better communication skills make a person more likable. If all else is equal, an accused is going to do better in a jury trial with a lawyer that the jury likes than with one that the jury doesn’t like.
While likability doesn’t invariably mean that a lawyer isn’t competent, or great for that matter, wrapping it up in a ribbon by calling it all part of communications is way too facile for my taste. Chatting up a client in an initial evaluation doesn’t translate to being great in front of a jury. Nor is being great in front of a jury enough of a skill to define a competent lawyer, no less a great one. More importantly, what makes clients love their lawyers goes well beyond the initial evaluation, and into providing the client with what the client perceives to be important, even if it’s actually horribly counterproductive to the legal interests.
Lee explains the virtues of his crappy lawyer:
Here’s the deal. She does things that make it clear that she cares about her clients. She rants and raves in court, like a maniac, on behalf of her clients. She crosses over every line and gets personally involved with her clients. She laughs with her clients, she cries with her clients. She returns calls, she calls at night, she stays on the phone forever. She loves her clients and it shows. She knows it and her clients know it. She’d do anything to help them. They are her friends.
Her clients love her. They love her when she wins, they love her when she loses. They know she’s committed to their cause. They know she did her best, even when her best isn’t good enough.
So the lawyer meets the client’s criteria for wonderful, even though she fails to demonstrate competence from every other metric. That’s because clients don’t know better. Notably, many of the things the lawyer does, and the client loves, are the sorts of things that no competent lawyer would ever do, such as ranting and raving in court like a maniac, at the expense of credibility before the court. Forget that “communications skill” pap, clients love it when the lawyer is their lunatic, saying and doing all the things that enable the client’s catharsis. Which leads inexorably to the bottom line.
It all makes me wonder whether she’s really a crappy lawyer or whether I have ideas about what’s important that might be irrelevant. Who sets the standard for crappy? Lawyers or clients? Maybe my idea of crappy doesn’t really matter?
This makes for a brutally painful choice. It also explains why the internet is replete with lawyers trying desperately to appear to be “caring and concerned and empathetic” rather than skilled. After all, what good is being competent if no one retains you?
There is, however, an alternative way to view this. While there will always be lawyers whose business is built solely on their likability, despite their either being incompetent or engaging in conduct that pleases the client but destroys their professional credibility, there are also practices built on outcome and effort. Granted, it requires a better, more knowledgeable clientèle to appreciate skill over empathy and long telephone calls, but they are out there and have more mature expectations of counsel.
Moreover, rather than do your utmost to appeal to the lowest common denominator, lawyers can make the effort to educate the public as to what they should be looking for in a lawyer, as Tannebaum has done in his free eBook, The Truth About Hiring A Criminal Defense Lawyer. No one is arguing that lawyers should be dislikable, but the willingness to sit on the phone for hours on end listening to the client vent isn’t exactly what most of us would call our best feature. Nor are we paid to become our clients’ best friend, especially when it masks the fact that the lawyer is crappy.
It’s up to each of us to decide what type of lawyer we want to be. The question seems to come down to whether it’s more important to get the clients’ money by meeting the clients’ likability needs or to provide the client with great legal service. The irony is the client may well love us more if we’re better friends and worse lawyers.
Update: While non-lawyers may appreciate the way the way Lee’s “crappy lawyer” makes her clients feel, Mike at Crime & Federalism has tapped into the other side of the equation:
There is, however, an alternative way to view this. While there will always be lawyers whose business is built solely on their likability, despite their either being incompetent or engaging in conduct that pleases the client but destroys their professional credibility, there are also practices built on outcome and effort. Granted, it requires a better, more knowledgeable clientèle to appreciate skill over empathy and long telephone calls, but they are out there and have more mature expectations of counsel.
Moreover, rather than do your utmost to appeal to the lowest common denominator, lawyers can make the effort to educate the public as to what they should be looking for in a lawyer, as Tannebaum has done in his free eBook, The Truth About Hiring A Criminal Defense Lawyer. No one is arguing that lawyers should be dislikable, but the willingness to sit on the phone for hours on end listening to the client vent isn’t exactly what most of us would call our best feature. Nor are we paid to become our clients’ best friend, especially when it masks the fact that the lawyer is crappy.
It’s up to each of us to decide what type of lawyer we want to be. The question seems to come down to whether it’s more important to get the clients’ money by meeting the clients’ likability needs or to provide the client with great legal service. The irony is the client may well love us more if we’re better friends and worse lawyers.
Update: While non-lawyers may appreciate the way the way Lee’s “crappy lawyer” makes her clients feel, Mike at Crime & Federalism has tapped into the other side of the equation:
Most clients want to feel the love. They want validation. They expect you to answer their calls to discuss the same issues over and over again. They expect you to file every motion their reading of USA Today has told them is relevant.Feeling the love yet? Is this really what you want to pay for?
Most lawyers resent this. “Didn’t we discuss this already?” “That motion won’t work.” “No, I’m not going to tell the judge he’s biased. I have a reputation to uphold.” “How dare these clients tell me how to do my job?!”
Yet tapping into a client’s need for constant validation is profitable. Why do you think family lawyers make so much money?
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“They know she’s committed to their cause. They know she did her best, even when her best isn’t good enough.”
I think that’s it. If I were a client, those two attributes would be absolute prerequisites. I’d prefer that the lawyer be competent and have them rather than incompetent, but there’s no easy way to judge competence. Lawyers’ attitude toward their clients, OTOH, as well as their commitment to their clients’ “cause,” may be more easily discerned.
Surely criminal lawyers seeking a more “knowledgeable clientèle” is an enterprise doomed to failure – if they were so knowledgeable they likely wouldn’t have gotten into trouble in the first place.
I’ve often felt that my job as a lawyer is to tell clients no. No, this will not just go away. No, you can’t ignore this, etc. Yet, they can always find someone to tell them yes.
As I noted on Tannebaum’s blog, we’re probably guilty of the same thing when it comes to selecting physicians. It may be difficult for us non-doctors to select the one whose technical skills really stand above the others, but we’ll certainly love the ones who act with compassion and demonstrate concern for us (i.e., good “bedside manner”).
The bottom line, as I see it, is that both strong technical skills and good interpersonal skills are important factors to the overall success of a criminal defense attorney – at least when success is measured by results and client satisfaction.
The two qualities are independent of one another. As one skill goes up, there is no reason to expect that the other should go down. (Well, acting like an idiot in court, making illogical yet passionate arguments and so forth, certainly shows a lack of technical skill, but that isn’t a condition precedent to a client feeling his/her attorney has a good bedside manner.)
Just as a patient should seek attorneys who have strong technical skills and an excellent bedside manner, so too should clients when seeking a criminal defense attorney.
There is a more knowledgeable clientele, but its not one that everyone can tap into. There are “professional” criminals, who have a far better idea of who’s an excellent lawyer than the one-off accused, and couldn’t care less about hand-holding or empty dramatics. They want results. The same for many (though not all) white collar defendants, who are far more concerned with outcome than empathy, recognizing from their business experience that empathy won’t overcome results.
But I can’t blame the unknowledgeable client for wanting someone who makes them “feel” better. That’s long been my point about the ordinary citizen who finds themselves accused of a crime; they really aren’t in a position to determine the good lawyer from the bad. Instead, they look for the lawyer who makes them feel good, and often this is the lawyer who guarantees the win, deceives about consequences, etc. But what’s the unknowledgeable client to do?
While the two qualities may be independent, I’m not sure that I can agree that they aren’t somewhat mutually exclusive. Aside from making a fool of yourself in court, except to the client who thinks your shenanigans are brilliant, if you spend all day and night on the phone holding hands with clients, when do you do work?
This is why the physician analogy doesn’t quite work. A doc can have a great bedside manner, but he can’t spend an hour with every patient, bonding and comforting, no matter how much the patient may want that. If he does, the patient bleeding in the next room dies. There are some hard and fast limits on how much love we can give without undermining our ability to do what we’re there to do, be lawyers.
I didn’t say, though, that I’d seek a lawyer who made me “feel good,” but one who the client thinks is “committed to their cause. They know she did her best, even when her best isn’t good enough.” I don’t care if you’re a gruff asshole if I perceive you’re working hard and have my best interests at heart.
An indifferent lawyer who fails to communicate what they’re doing and why well enough for the client to feel they’re really fighting for them may just be too busy with other clients. But often, they may not be doing so because they’re really NOT doing everything they can. That’s the simple reality in WAY too many cases and why I said those attributes would, for me, be “absolute prerequisites.”
Quite honestly, there are many really crappy defense lawyers out there (along with plenty of good ones who I respect), and most of the bad ones, if you ask them, all think they’re the Cat’s Meow. Their excuses for not communicating with clients or caring about “their cause” would sound very similar to yours, but in too many cases the client’s critique is spot on.
The quote you referenced had to do with making the client feel good about the lawyer. Obviously, you meant something different. There is a big difference between not communicating with the client (and there’s no excuse for not communicating with the client) and communicating with the client by telling the client what they want to hear.
This is a nuance that may be better appreciated by lawyers than non-lawyers, as we are frequently asked (if not begged) by clients to give them good news, when the news isn’t good. We can lie, and make the client happy, or tell the truth and bear the brunt of their disappointment. The client blames the lawyer for being the messenger of bad news, which is understandable since he’s got no one else to talk to, but that doesn’t give lawyers a right to lie to clients to make them feel better, or happier with the lawyer. All we need do to gain our client’s love is to tell them what they want to hear. Honest sometimes makes that impossible.
I don’t think I “meant something different,” I was taking at face value the reasons given why that particular lawyer’s clients felt good about her. I believe quite a few lawyers do not do their best for every client, so I fully understand someone seeking out an attorney who “They know … did her best, even when her best isn’t good enough.”
I’m not saying lie to them, but I am saying you damn sure better be busting your ass for them.
I had a young family member in trouble last year whose attorney turned out to be a complete POS. He didn’t give a crap about my relative, and believe me it showed both in his attitude and work product.
It’s the difference between efficiency and effectiveness. Doing her best, when she’s a crappy lawyer, isn’t the same as doing the best job possible. Lee’s “crappy lawyer” appeals to the way clients feel about her. But Lee’s “crappy lawyer” is still crappy. So while she makes her clients feel good, and they love her for it, she is still a crappy lawyer.
My family member’s crappy lawyer was crappy in both senses. But he sure thought highly of himself and his valuable time, and as it turned out it wasn’t because he was spending time on her case. After many months, my wife and I intervened to insist that he perform the most minimal due diligence, immediately after which a felony charge was dropped to a misdemeanor and they reached an acceptable plea deal.
Like Dan, this fellow thought his job was to tell his clients “no.” But it turned out by that he meant, “No, I’m not going to get off my lazy butt for a second or investigate your case beyond whatever the prosecution told me, and how dare you call to ask ‘why not?’.” Sometimes people think they have crappy lawyers because they do.
Absolutely. There are a lot of crappy lawyers out there, and some lawyers that clients love who are, nonetheless, crappy. The trick is to find one who isn’t, in fact, crappy, and it’s not easy. I guess the whole point of this is that clients loving their lawyer, and their lawyer not being crappy, are two entirely different matters. If lawyers learn to become successful by appealing to how clients feel about them, but lack the skills necessary to be effective for their clients, we’re in trouble.
There is some room for passionate, if otherwise pointless, customer service in healthcare just because of the placebo effect. Medicine is in a rather handy position where if you can convince the patient that what you are doing will make them better they can make it work for them. That said, there’s still a lot of alternative medicine that’s nonsense that manages to convince people by being sufficiently caring.
That said, I don’t know if the placebo effect really translates into the legal sphere.
Your “update” evidences what I’m reacting to: Your clients are right to think you resent them and look down your nose at them if you regularly demonstrate the attitudes described in the excerpt from Mike’s post.
You’re running a small business and don’t care how your customers feel about your service. Anyone with such attitudes should expect to, and deserves to, make less money than a competing business that values their customers and acts like it.
Mike is pointing out another part of the problem, rather than advocating a position. If the perceived “love” by the client isn’t real concern, but playing on clients’ need for validation, the lawyer can easily manipulate the client, including running up the fees as well as making the client feel empathy when it’s just a gambit.
You said earlier that you’re looking for a lawyer who cares about your cause, but you’re not looking for a lawyer who makes you feel good. The fact is that is exactly what you’re looking for, since your desire as a client is that you to believe your lawyer cares. Note the subtlety in the lauange: You want to believe. Whether the lawyer does care, or is just making you believe he cares, are different things. Whether the lawyer cares and has the ability to translate that care into potential outcomes, or cares but is incompetent, are different things. You need to have a clear understanding of the various alternatives to be able to understand the points, and you seem to keep mixing things up in your own mind, which I suspect is because you’re trying to plug in your experience, as described above, into this paradigm. But this isn’t about you, and your experience isn’t what this post is about. If you can step back, away from your personal experience, perhaps it will help to understand the issue better.
Sleazebags will always be sleazy. OTOH, lawyers with integrity can behave otherwise and still demonstrate they value their clients.
A law firm here in Austin I know of hired a full-time social worker for that purpose so the lawyers’ time wouldn’t be wasted with client handholding, etc.. Ditto for the civil lawyer who had about a dozen DNA exoneree’s suits – he ended up hiring a social worker to deal with the exonerees because their personal needs were beyond what he could deal with as a lawyer but were still important and in the best interests of the case and his clients.
In both instances – criminal and civil – those social workers provided valuable assistance to the clients at a variety of levels, it’s wasn’t just blowing smoke up their asses for phony “validation.”
Justice is an abstraction: It’s inherently about how people “feel,” including the defendants.
Are you suggesting that law firms that don’t have social workers on board, or lawyers willing to stay up all night holding the clients’ hands, are unworthy of being retained? You don’t want a lawyer. You want a therapist. That’s not what lawyers do, or what you should want lawyers to do. You want them to be lawyers, not hand-holders.
And do you think these social workers work for free? Who do you think is ultimately paying them?
Oh, and BTW, between the two of us it’s MUCH more you than me that’s basing your responses on your own experiential-based emotional reactions. I’m by no means reacting solely to that one case with my relative. In fact, I honestly was only reminded of it when I mentioned it as an example in my third comment – my initial reaction had nothing to do with that. It stemmed more from my general impressions of the defense bar from a decade and a half working in TX on criminal justice reform.
No, I’m suggesting that there are constructive and unconstructive ways to approach the problems you’re describing. Whining about it is one way. These firms sought out another. Use your noggin.
This whole string of commentary began way back with a jealous divorce lawyer complaining a lawyer he considered inferior had more clients and made more money than him. I’m suggesting that maybe you can ask “why” and respond with more than envy and spite.
Whining about it? I think you completely misapprehended the point. I’m sure you will tell me otherwise, but we’ve been over this turf already. If you think that a lawyer who doesn’t hold your hand isn’t the right lawyer for you, that’s fine. Others might prefer the lawyer who pays less time feigning devotion and more time winning your case. Let’s leave it at that.
Is a lawyer who has a social worker on staff splitting fees with a non-lawyer?
I would imagine that the social workers are paid a salary for their services, and that fee splitting isn’t implicated. There’s nothing wrong with providing ancillary services to clients.
Well, like I said this morning – fascinating issue.
When I was a public defender I got in trouble because other public defenders “told on me” that I wasn’t nice enough to the clients. A few weeks ago a client hired me and said “I’m hiring you because I get the sense you’re not a very nice guy, and I think that’s important. I have other clients who think I have a great bedside manner. I think one thing is true – clients in criminal cases want good news. They want hope. They want to hear that everything will be ok, and maybe perfect.
It is only the ones who are realistic about their situation, either because they’ve been here before, or they’re a federal client, or they just understand things better than others, that say they want to hear the truth, and mean it.
I’ve always said that when it comes to doctors, the analogy Brian gave, that I want the best doctor for my ailment, even if he’s a complete asshole.
But that’s me.
Hey let’s face it there are crappy lawyers just as there ar crappy accountants, crappy doctors and so on.
When someone hires a lawyer they are looking for advice & guidance, and they often base their decision on the level of experience, possibly a recommendation, and for a lot of people, the “fees’. Even sometimes a good rapport from the initial meeting may go a long way in setting the tone for overall relationship. In spite of it all, they both have one goal in mind….TO WIN THE CASE.
Unfortunately, you can’t always read how well you well get along with your lawyer and vice versa. Likability and feeling “loved” because a client may have been through hell leading up to the case itself maybe important yes, but it ultimately comes down to “Can this lawyer deliver?”
This “crappy, but lovable lawyer” archetype is back asswards.
The practice of law may have become a beauty pageant for those shilling their services on the Web or Twitter, but if that’s what clients really want, then they will never be satisfied or will turn on you when they dig their heads of of the gopher hole they call ignorance.
There are enough incompetent lawyers in our profession that we don’t need to validate empathy as a metric for competence. Do I care if my clients “love” me or not? Hell no. If I go to the dentist, I don’t want a lollipop and a hug; I want my teeth cleaned or dental cavity filled. Emphasis: DENTAL.
The pseudo-existentialism grinds my gears. Most lawyers I know or face as adversaries are competent; some are not. How I choose to exploit their incompetence for my clients’ benefit is what I’m paid to do. As long as I fulfill the tenets of my professional and ethical obligations to my client, to the court, to my fellow lawyers and to the public within the bounds of the rules of professional conduct, then my “hug-a-bility” quotient is irrelevant.
Do my clients thank me for my services? Sometimes, but usually only a polite “thank you”. Payment of my accounts is gratitude enough.
I met a former public defender at a conference this weekend. She compared her work as a junior PD as being similar to that of a social worker.
There’s a delicate balance between (1) telling the client the truth directly enough so they’ll listen to you and heed you, and (2) protecting their feelings enough that they won’t shut down and ignore your advice.
What galls me is when clients keep me on the phone for hours a week with hare-brained schemes to win the case by “thinking outside the box” and with defenses they saw on the internet or heard from their brother-in-law who watches a lot of USA Network, and then get irritable when they get the bill.
What also galls me is when clients expect me to respect that their specialty (investment banking, or running a business, or being a doctor) is arcane and I can’t possibly understand all the nuances, but who think that I’m basically doing something they could do just as well if they had the spare time. They think that because they’re smart, their legal theories and strategies must be smart. They’d be terribly offended if I told them that I’m smart so they ought to use my suggested approach to taking out somebody’s appendix next week.
One of my favorite examples: a client was being sued by a Big Federal Agency for miscellaneous fuckwittery. He came up with what he thought was the BEST IDEA EVAR: he’d amend his past five years of taxes to show vast amounts due, and then the IRS would come after him for the money, and then Big Federal Agency would see he didn’t have money available and would lose interest and wander away.
I told him it was a poor idea. He wouldn’t listen, thought I was not being aggressive enough. I escalated and told him, basically, that it was the most moronic thing I ever heard. He was very offended. Then he did it anyway. The IRS swooped in and froze all of his accounts, including the money he was going to use to pay us. He was hurt and thought we were being very unreasonable when we moved to withdraw.
I would disagree that winning the case is the one goal in the mind of someone who goes to a lawyer, for example if your neighbour is peeing on your lawn, you don’t want to beat him in court, you want him to stop peeing on your lawn. The lawyer knows that beating him in court is a way to do that but the client just has a problem he wants fixed.
I suspect winning the court case is a possible means to an end rather than exactly what people want (in a fair number of cases, sometimes winning in court is enough).
Nobody is saying (except Brian, but he’s just being Brian) to treat clients poorly. But playing the overly empathetic but crappy lawyer is a scam on clients. What’s interesting, as noted by Grits’ various comments, is that the overly empathetic lawyer is what clients think they want. So who cares about competence, as long as we sit on the phone with them and tell them every hairbrained idea they come up with is brilliant. Then they lose but love us for caring so deeply about them.
Not sure where I said clients should be treated poorly, unless you interpret my perceived lack of a bedside manner by some to be an indication that I advocate treating clients poorly. I think I’m actually making the point that clients who are told the brutal truth mostly view that as poor treatment, even while they are insisting they want a lawyer that “tells it like it is.”
Mike’s offered his response in this post, Your Irrelevance Is Not My Arrogance.
I think this is an extreme example that shouldn’t be used to make generalizations.
First you say the client, ignorant of law but cognizant that their lawyer is attentive, thinks highly of his lawyer. You write, “That’s because clients don’t know better.”
Then you write, “Forget that ‘communications skill’ pap, clients love it when the lawyer is their lunatic, saying and doing all the things that enable the client’s catharsis.”
But the client didn’t know any better that their lawyer was on the absolute margins of competence, you acknowledged that, so how do you know that if the client were aware of this, the client would continue anyway, thrilled with the lawyer’s ranting incompetent lunacy in court, choosing that catharsis over the chance of winning the case?
C’mon.
[Ed. Note: Feel free to slam any lawyer you think is incompetent or treats clients poorly, but not anonymously. You need to own it, and that means a real name and a real email address. The balance of your comment has been deleted because it’s an act of cowardice at best. If you want to attack, fine. But I won’t allow you to attack someone from the shadows.]