Are You an Effective Negotiator?

In law, negotiations between parties can end in a win-win for both sides or they can break down and leave your client further from their objective. It’s a delicate dance that requires a clear understanding or your client’s needs and desires as well as those of the opposing party.

A recent NW Sidebar posts highlights these tips for negotiating effectively:

  • Adopt a negotiator’s mindset
  • Prepare yourself mentally
  • Stay focused on your client’s goals
  • Practice total awareness
  • Be honest
  • Know when to stop
  • Confirm agreements

Read the full post here.

Before the Beginning

You can’t focus on your client’s goals if you don’t know what they are. Negotiation is a serious subject. If possible, meet with your client in person. Be open to what the client has to say, but be prepared to curb his expectations.

  • If there are boundaries you feel you can’t cross, speak up.
  • Identify and verify lienholders and others who may have third-party rights to settlement proceeds.
  • Compile your costs to date (and likely future costs).
  • Use this information to discuss the difference between gross and net settlement values. Give concrete examples.
  • Allow the client time to think even if it appears you’ve come to a mutual understanding about how to proceed.

During Negotiation

During negotiation, keep the client informed. Technically, it may not be necessary so long as you are operating within your settlement authority.  However, keeping the client involved will give her a better picture of the overall process.

Remember: the ultimate decision to settle is the client’s, not yours.

After Negotiation

Don’t stop at confirming agreements with opposing counsel. Confirm the client’s consent to settle in writing! Let the client know the likely ETA of the settlement proceeds and what the disbursement process will involve (for example, waiting for a check to clear). Provide a written settlement accounting. A sample settlement accounting and checklist is available on the PLF website. Select Practice Management > Forms > Litigation.

All Rights Reserved Beverly Michaelis 2018

 

Engagement Letters Are Your Friend

Today, I’d like to share a recent post from our friends at NW Sidebar about the importance of engagement letters.

In Cox v. Alliant Insurance Services, Inc., 2017 WL 4640452 (E.D. Wash. Sept. 19, 2017) (unpublished), the plaintiffs sought to disqualify the opposing law firm based on a conflict of interest. One of the plaintiffs argued that he was a former client of the firm on a substantially related matter, necessitating the law firm’s withdrawal.

The plaintiff’s contact with the firm was as a representative for a corporation.  In concluding that no attorney-client relationship existed between the plaintiff and the law firm, the court relied on two key points:

  • The law firm and corporation executed a written engagement agreement that identified the corporation (and not the individual) as the client in the matter.
  • The plaintiff failed to introduce contradictory evidence, i.e., he could not point to any communication or action by the firm which expanded the attorney-client relationship to include him individually as a client.

Read the full post here.

Lessons Learned

As we discussed in the CLE, Limiting Exposure to Conflicts, identifying your client and clarifying the client’s status (prospect, current client, or former client) is paramount to conflict screening and limiting your potential liability. The single best tool at your disposal? Written engagement, disengagement, and nonengagement letters – all of which are available at the Professional Liability Fund website.

But the law firm in Cox didn’t stop at the engagement letter. Firm members were also consistent in their actions toward the corporate representative. There was no evidence of emails, correspondence, or other communication supporting that the corporate representative was an individual client of the firm.

The moral of the story? A solid engagement letter is a small investment to make in the realm of thwarting conflicts and liability. Even better: maintaining consistency in your corporate communications.

All Rights Reserved 2018 – Beverly Michaelis

 

 

How Long Do You Need to Keep Closed Files?

A fair question posed recently on the NW Sidebar blog.

As in Oregon, there is no rule for file retention in Washington. The only exception? Trust accounting records: five years from termination of representation in Oregon; seven years in Washington.

Guidance for Oregon Lawyers

So where can Oregon lawyers go for answers?  The best resource can be found on the Professional Liability Fund website.  Select Practice Management > Forms > File Management > File Retention and Destruction Guidelines.

Files should be kept for a minimum of 10 years as protection against legal malpractice claims. To learn more about ethical recordkeeping practices, see Ethical Guidelines for Client Files.

Guidance for Washington Lawyers

The NW Sidebar post suggests a four step approach:

  • Start with the Guide to Best Practices for Client File Retention and Management on the WSBA website
  • Check with your Washington malpractice insurance carrier
  • Consider the nature of each case (some immigration cases may be “live” 20 years from the time of initial representation)
  • Weigh the possibility of malpractice or discipline claims

In Oregon, the latter drives the minimum 10 year retention recommendation.

Multi-Jurisdictional Practices

Lawyers who practice in both states (or other states) may choose to keep files in conformance with each jurisdiction’s recommended practices or apply the strictest retention requirement.  Universal retention practices are easier to follow and enforce. Jurisdiction-specific retention practices may allow for earlier disposal of files.

What to do Now

Every firm should have documented file retention practices and a file closing checklist. Need a place to start? Consult the Guide to Best Practices for Client File Retention and Management on the WSBA website or use the Professional Liability Fund retention guidelines referenced above and the PLF sample File Closing Checklist.  [Available on the PLF website at Practice Management > Forms > File Management.]

Creating and using a file closing checklist ensures consistency and makes the file retention process easier for lawyers and staff.

All Rights Reserved – Beverly Michaelis -2017

Negative Online Reviews

We all know that negative online reviews can be hurtful and maddening.  Last month I highlighted suggestions from the July Oregon State Bar Bulletin article by Linn Davis, with a few additions of my own.  Because I know this topic strikes a nerve, I wanted to share some further advice from our friends at NW Sidebar.

  • A reasonable and measured response is key. Blasting people who give you a negative review is not a good business model. You can try contacting the review site and asking for the review’s removal if you can prove the review is false, defamatory or written by a competitor. This, however, may not be successful, especially if the review is anonymous. See Thomson v. Jane Doe, 189 Wn. App. 45, 356 P.3d 727 (2015) , when the court refused to force disclosure of an anonymous online reviewer’s identity.
  • You can respond directly to the review on the site. Be courteous and explain that due to your duty of confidentiality, you can’t address the facts of the complaint, but that you do not believe it presents a fair and accurate portrayal of the events. Make clear that you are always available to meet with former clients and address any concerns they may have.
  • If possible, try to contact the reviewer directly and seek to ameliorate the situation or explain to them further why the representation unfolded as it did. If this is successful, don’t hesitate to ask for an updated review.
  • Try to avoid further negative reviews by soliciting client feedback directly as the representation continues and in exit interviews. Try to give your clients every opportunity to air their grievances with you and your firm directly so they don’t have the need to vent in public.
  • Lastly, the best antidote to a negative review is positive reviews. Keep your profile updated and facilitate the opportunity for your other clients to post their own satisfied reviews.

via Responding to Negative Online Reviews — NWSidebar

As I’ve said before, I am not a fan of engaging with the reviewer/client online.  However, the idea of soliciting client feedback during and after the course of representation is stellar.  As Sandra Schilling notes, this is about giving your clients the opportunity to vent so they don’t feel the need to blast you online.  I would add: it may also be preemptive. While there will always be clients who are perpetually unhappy, most people are reasonable.  If you learn about a client’s dissatisfaction early, you can intervene and repair the relationship.  The unappealing alternative is to allow the client’s bad feelings to fester – never a good solution.

All Rights Reserved 2017 Beverly Michaelis

Is “Diverse” Hiring Really What You Want?

What does diversity mean to you?

Diversity is defined as “The fact or quality of being different; having a variety.” It can only be applied to a group of things or people in order to highlight the presence or absence or difference or variety.

The reality is that a roomful of black women is no more diverse than a roomful of white men. And yet, we tend to describe programs as being aimed at “diverse attorneys” and state that we would really like to make a “diversity hire” in this position. But when you stop to think about it, what do we really mean?

If a program is for diverse attorneys, it must be for all attorneys and hopefully the group will represent a large variety of people. Is that really what we mean? No, it isn’t. What we mean is that the program is for attorneys who are underrepresented or marginalized in the field of law. Why not say that? Or better yet, let’s actively state what we mean. Is the program really aimed at women and people of color? Then let’s just say so. Let’s not seek a diversity hire; let’s seek to create a diverse workforce. Or we can talk about diversifying our employees.

Thought provoking and to the point.  As lawyers, we know language matters.  Perhaps it is time to change ours.  Read more here: Is “Diverse” Really What You Mean? — NWSidebar.