WILMIC News & Risk Management Articles

What We Have Here Is a Failure to Communicate

Communication Problem

Claims involving communication issues are generally avoidable, yet at Wisconsin Lawyers Mutual Insurance Co. (WILMIC), client communication mistakes also are among the most frequently cited by those filing malpractice claims. Lack of communication is also traditionally high on the list of the most frequent complaints among grievances filed with the Office of Lawyer Regulation (OLR), according to an agency annual report.

Even with all the instant communication devices at our finger tips (smartphones, tablets, laptops, and so on), many people still think lawyers don’t communicate very well. In a Gallup poll conducted several years ago, a whopping 80 percent of respondents said lawyers should do a better job of communicating with their clients.

Types of Communication Errors

Communication mistakes account for more than 25 percent of the claims that WILMIC handles. Here is the breakdown of the types of communication errors being made:

  • Failure to obtain consent or to inform the client – 8%
  • Procrastination or no follow-up with the client – 7%
  • Fee disputes or misunderstandings with the client – 6%
  • Failure to follow client instructions – 5%

Every time a lawyer is unresponsive to a client’s phone message or doesn’t fully explain a case, the image of the profession is harmed. What’s worse is that those things sometimes lead to malpractice claims or OLR grievances.

Unhappy clients or uninformed clients are more likely to have some complaints about their case, and probably about their lawyer, too.

Why are some clients unhappy with the way they are getting, or not getting, information from their lawyer? Sally Anderson, vice president of claims at WILMIC, says lawyers and clients sometimes speak to each other on very different levels. “Clients often don’t understand the legal language and issues their lawyers are explaining to them. And they don’t want to appear stupid in front of the lawyer, so they often don’t ask for more information. Lawyers often think just telling a client is enough, when, in fact, it isn’t. Anything that is important in a representation is best confirmed in writing with the client, after the discussion, so the client can review it when there is time and some ‘space’ to consider everything the client has been told about the case.”

Communication Claims

Anderson says two-way communication is one of the important ways to avoid problems down the road. “The most effective communication depends on the client. How sophisticated is the client? How likely is the client to understand the matter and the suggested actions? It is important to know the client and to be able to adjust the communication to the person. Will this client understand the gravity of the decisions being made if they are memorialized in an email? Would snail mail ‘elevate’ the importance of the communication? Is a phone conversation followed by some kind of writing okay, or is this a client you need to see to be able to ascertain whether she or he ‘gets it’?”

Of course, follow-up in writing is critical as well. Anderson adds, “Lawyers are expected to write things down. That is what we do. If something isn’t in writing, the door is wide open to complaints and misunderstandings. In some cases, the misunderstandings are that the case didn’t turn out as the client wanted: if that was a possibility, it should be something discussed and documented beforehand. Lawyers should have notes in their files, too. Sometimes, what isn’t there is more telling than what is. Lawyers should try to document consistently, and all documentation, no matter what form, should be professional. That means the spelling and grammar should be checked; capital letters should be used, as appropriate; the communication should be proofread before sending and not sent unless the lawyer has had time to consider the angles. Lawyers are paid for their expertise and perspective.”

Communication mistakes account for more than 25 percent of the claims that WILMIC handles. Many of them are avoidable.

Communication in the Digital Age

The digital age has changed the way lawyers practice law. But it also has changed client expectations. Today, far more clients have Internet access at home or on their smartphones. That has raised the bar for lawyers when it comes to response time.  Because of the speed and ease of use, clients fire off emails constantly and often expect responses almost as quickly. But, Anderson cautions, speed doesn’t necessarily mean it is effective communication. “It often takes some time to research and think before opining on a matter. Advice should not be rendered ‘off the cuff.’”

Anderson says this has certainly changed the way lawyers and clients communicate. “An ABA survey showed that 58 percent of all lawyers texted their clients ‘regularly’ or ‘occasionally’ in 2013. Times are changing. Technology continues to move the standards for lawyer-client communication. It is often easier to respond today – that’s a good thing. But sometimes those responses are without thinking through the issues – that is not a good thing. Lawyers need to educate clients about what ‘expectation’ is reasonable to allow them to do the work they are retained to do. Clients who expect an immediate response are often clients who don’t value their lawyers or the advice given. Lawyers need to exercise restraint when using email and other electronic communications and not let themselves be bullied into thinking they must respond right away to every email. Especially to the serial emailer. Sometimes I think lawyers forget there are other tools: a phone call or a face-to-face visit could clear up the 25 emails that don’t get to a resolution.”

Double Edged Sword

Milwaukee family law attorney Gregg Herman agrees. “Communication experts tell us that 80 percent of communication is nonverbal, so nothing is better than face-to-face meetings, especially when making important decisions or discussing sensitive topics. However, today more and more clients prefer using email over personal meetings and especially over telephone conversations. Email has pros and cons, but it cannot replace a personal meeting, at least on occasion.”

Herman says that is especially true for a lawyer practicing in an emotionally charged area of law like family law, as he does. “Lawyers are generally not great at managing emotions and it is even more difficult if the lawyer is not making eye contact with the client.”

Herman adds that communication between a lawyer and a client can break down when the lawyer is overloaded with work. He says even the best technology cannot replace the hours needed in a day to do the work. “I think the biggest problem is lawyers who take too many cases, but still only have 24 hours in their day, of which only about eight to 10 are working hours. The retainer looks good when it comes in, but lawyers need to manage their caseload.”

Anderson says the advent of technology in the last 20 years or so has been a double-edged sword. “The good thing is that electronic communication makes a record. The bad thing is that often the casual communication means the ‘message’ might be interpreted differently than intended. The ‘reply’ button can cause issues: a six-month email chain may discuss a number of different topics, but the subject line stays the same, making finding anything difficult, and often hiding the real content of the chain. Lawyers need to take control of that and start new chains with new topics to avoid a misunderstanding with their client. Emails, including important ones, can get lost in the shuffle of too much stuff in the inbox.”

Herman says emails can be helpful, if used properly. “Conversations which previously were verbal, now are memorialized in emails. But, it is not always possible to predict the clients for whom written documentation is critical. A good general rule is to try to memorialize any advice that the client needs to hear, but may not want to hear. In divorce, that can be quite a bit.”

Herman agrees with Anderson that managing client demands and expectations has changed dramatically in a very short period of time. “It’s huge. While clients tend to understand phone calls being returned later, they seem to expect that emails and texts should be returned immediately. I discourage clients from texting as they are difficult to save for future reference. On the other hand, clients can now email in the evening or on weekends. That’s fine as long as they know they may not get a response until the next day and they will be charged for reading and responding to email and texts. In fact, we put the latter point into all of our fee agreements.”

While it’s true that lawyers who fail to adequately communicate with their clients risk losing those clients (or even facing a malpractice claim), it is also true that clients have an obligation to disclose relevant facts in their case. Herman says emphasizing honesty and openness in communication with a client is an important part of the lawyer-client relationship.

“Fortunately, for most clients, it’s not a problem as they know they need to be open and honest with their lawyers. For those who may not be, I tell them a saying: Everyone tells the truth to their anesthesiologist. When they are asleep, they cannot tell their doctor their true age or weight, which may make a difference in whether they survive the surgery. While no one dies in a divorce or other legal case, the lawyer will be meeting and talking with the other lawyer and perhaps even with the judge. Without full and accurate information, the lawyer is severely handicapped at best and may even be worthless.”

Conclusion

It’s been said before, and we say it often at our risk-management seminars. The world has changed from the days when clients had blind faith in what their lawyers were telling them. Clients today are more likely to be educated, especially with self-help Internet sites and other electronic information available to them at the click of a mouse or the touch of a smartphone screen. Today, they are more likely to want to be actively involved in their case and understand the process. And they have higher expectations, not only of the information they get, but also how fast they get it and the overall customer experience and service they receive.

Resolve to communicate well with your clients. Be responsive, follow up with clients when necessary, clearly identify your expectations as well as those of your clients, document your communication with your clients, and above all, speak in a language clients understand. Drop the “legalese” when explaining things to your clients. It works. Understanding why something is the way it is makes it easier to accept and rationalize rather than just being told that’s the way it is.

When clients don’t understand what is happening with their case, two problems can arise. First, they aren’t in a position to make informed decisions. Second, they may be afraid to ask for an explanation, and ultimately, will not understand why their case turned out the way it did.

Good communication isn’t based on what you say to your client. It’s based on what the client understands. Talk in a language your clients will understand.