What we have here is a Failure to Communicate
Picture this. You represent an extremely brittle client. Years of getting gaslit by an abusive, narcissistic spouse have worn her down. A motion filed by the spouse's attorney pops into your inbox seeking sanctions against her for supposedly misrepresenting facts in a recent pleading. You know it's bullshit and going nowhere. So what do you do?
Flip it to the client with a brief. “Just received this. Call to schedule a time to talk about it.”
Have your assistant forward it to the client with no comment.
Pick up the phone and call the client to both advise her of the pleading and reassure her that it's posturing and going nowhere before you send it off to her to review.
Before we get to the obvious answer, what’s the easiest method of communicating the news? Just flip the email, of course. But there lies the problem. In our bandwidth-saturated world, we tend to opt for the easy rather than the correct method of communication.
Of course, it’s best to pick up the phone and reassure the client that everything is under control BEFORE you send the pleading. At the risk of being guilty of reverse ageism, younger lawyers prefer to hit the send button rather than dialing the number. In part, it's a generational thing.
This vignette leads me to examine proper communication etiquette for family lawyers. I use the word etiquette intentionally because the foundation of good client service is good manners. Mrs. Peskind drills the importance of manners into our grandsons’ heads, and lawyers benefit no less from a manners class.
Four Methods of Communication:
There are four primary methods for the delivery of information: face-to-face (in person or Zoom), formal letter, phone, or through email or text. Additionally, it’s important to recognize when not to deliver information. I’ll explain that later in this essay.
Knowing what medium to use depends on:
The temperament (or temperature) of the client.
The nature of the information to be communicated.
The urgency of the message.
One of the primary rules of good writing is to consider your reader. Many writing instructors advise that when writing, you should have one imaginary (or actual) reader anchored in your mind. The same goes for communicating with your client. Your working mantra needs to always be, “How will this particular client receive this information?” Here's what I consider when weighing how to communicate.
When to meet face-to-face. First, let me state that I rarely use Zoom meetings when in-person is available. There tends to be some cultural resistance to meeting in person, maybe because of the backlash from Covid. But I find it much more satisfying to look into a client's eyes rather than at a computer monitor. I use in-person meetings when I sense the client is starting to lose it, getting angry, or feeling frightened or neglected. In particular, when a client is married to a malignant narcissist, in-person meetings are a bulwark against the gaslighting. I also meet in person to prepare clients for depositions, trials, hearings where they may need to testify, or a mediation. It's also good practice to meet in person for periodic check-in meetings just to see how things are going.
When to write a letter. This format is the best method of communicating important information. While we can use the same words in a formal business letter as in an email, the formality of the medium matters. I use a business letter when the information to be conveyed is complicated, critical, or comprehensive. I also use a letter when I want to emphasize a client's bad choices or as a means of making a clear record in the event of a later grievance.
When to pick up the phone. I think the phone is the best method of conveying information that’s time-sensitive. Of course, email or text may serve the same purpose, but they’re cumbersome when exploring options. If you need to deliver significant news, I believe the phone is the preferred method. “We just received their proposal; they’ve made some concessions, but we’re not quite there yet. Let me send it to you to review, and after you've had a chance to do so, either call me or set up a time to come in to discuss it with me.”
Note that it's critically important to pick up the phone immediately when bad news needs to be delivered, such as an unfavorable child custody evaluation or court ruling. Nothing is worse than letting your client hear the news from their gloating spouse.
Part of the problem with the phone is the friction required to make a call. You need to look up the client’s phone number, make the call, and then memorialize the conversation either by sending a follow-up email or by recording it internally. We all seek a more frictionless existence. Nevertheless, set up your client in your contacts so that Siri can make the call, and then dictate a quick memo after the call. It's worth the extra steps.
Phone calls can also turn into lengthy therapy sessions if the lawyer doesn't manage the call efficiently. Many prefer email to avoid these burdens on their bandwidth. But as I pointed out early in this essay, the easy path usually isn’t the right path. Buck up and make the call. Advise the client of time limitations and offer them a more extended appointment during a more convenient time.
When to use email or text. Email is the easiest way to communicate. But it's bloodless and can't convey emotion. Though it's ubiquitous, it's not the best way to discuss emotional topics (and clients in divorce see much as emotional). Actually, the subtitle of this section should be “When not to use it…” As a starting point: never, never, never communicate with a client by text or email when you're angry. We can all think of snarky messages we’ve sent because we were pissed. Adopt the 24-hour rule for all communications. Whenever someone gets a rise out of you, wait 24 hours before responding. Emails and texts are simply too immediate to use when you're emotionally out of whack.
Also, as noted above, never forward an email received from the opposing counsel without considering the effect on the client. While we may look at a communication as banal, the client might interpret it as Armageddon. Consider the client’s personality and the nature of the communication before flipping.
Also, don’t take email communications from clients (or others) too personally. Most people are not artful enough writers to convey a proper tone in their email communications. What you perceive as a disgruntled attack on your competence may actually be a confused and frightened plea for help. Pick up the phone and get to the bottom of it.
Email is for information, not emotion. If it’s sensitive, speak in person. Limit your use of email to memorialize phone conversations or for quick messages such as scheduling, reminders, and other routine communications. Text is a problem in that it's cumbersome to save a text exchange to keep a record. A friend of mine just told me he advises his clients that if they want to notify him of some information by text, he responds by text asking them to send an email with the details. I’m not certain how enforceable that protocol is, but it’d be helpful to have the email serve both as an easily kept record, reminder, and clarification.
When Not to Convey Information
While ethically we’re obligated to convey offers of settlement or other important developments in the case, I don’t believe we need to communicate all of the chatter (both mental and external) that occurs throughout the case. Use your discretion. The information you share should be culled to help the client make wise, informed decisions. Your professional relationship shouldn't resemble a friendship where you share, by stream of consciousness, all of your thoughts on a particular matter. While you shouldn’t gloss over bad news, neither should you exaggerate expectations.
By nature, I tend to be sanguine and optimistic that I can overcome all obstacles in a case. But reality or unforeseen circumstances sometimes interferes with my rosy assessment. The old saying, “under-promise and over-deliver,” rings true. Set expectations conservatively and then exceed them—creating a positive impression by delivering more than what was promised. Even if you are confident you can achieve a specific result, keep it to yourself. Provide reassurance that you will work hard to help the client achieve a particular result but that outcomes are always uncertain. Ironically, much of our stress is self-induced by misleading clients as to the likelihood of uncertain results. The result is an angry client and poor sleep for yourself.
Special Problems
Some clients, either because of cost sensitivity or control problems, want to restrict your means of communication. I recently had a case in which my opponent informed me that his client had prohibited him from communicating with me outside of the courthouse. I thought he was kidding, but he sheepishly assured me that it was true, and he intended to honor the limitation. I was incredulous and told him so. In fact, I think I told him it was stupid. It’s like telling a doctor he’s limited in his diagnostic tools. The interference ultimately won't allow you to do your job.
The client doesn’t dictate our choice of how to communicate any more than how we prepare our argument. Many clients will attempt to influence both our communication and mode of preparation. But our professional responsibilities demand that we use our skill and judgment to best represent them. Limitations on our ability to communicate should be rejected, or alternatively, the client should be rejected.
Fight the Easy
Choosing the correct medium over the easy one is crucial for effective communication. I read broadly about how the deluge of information from our cell phones impairs our thinking. I regularly urge our paralegals and attorneys to use deep work strategies to focus and concentrate. But the reality is that on a day-to-day basis, all of the pings, clicks, and inbox surprises tax our nervous systems. When we become fatigued, we opt for the simplest rather than the best option.
Some are conflict avoidant and anticipate an uncomfortable conversation with a difficult personality on the receiving end. But for lawyers, uncomfortable conversations are part of our stock and trade. To be an effective communicator (and lawyer, for that matter), you must embrace the discomfort and overcome the natural desire for the easy.
As Marshall McLuhan stated, “The medium is the message…” This notion highlights how the form of communication (email, face-to-face, call, etc.) shapes how the message is perceived, sometimes more than the content itself. In a professional setting, choosing the right medium can make the difference between a successful relationship and one fraught with mistrust and tension. Before you opt for the easy, think about the best medium from the perspective of the client.