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For commercial litigators, getting repeat business
can be enhanced
by paying attention to clients after the trial is over
One fateful day, circa 1994, a small law firm gave me a
list of about 250 large Phoenix-area businesses and asked me to find out who
their litigation attorneys are. The goal: to find out if the big companies are
married to the big law firms.
I accepted the assignment before I realized to what
depths I would have to descend (literally) to gather the required information.
In those days, back when dinosaurs ruled the Earth, you
couldn't just go to the Clerk of the Court's website. You had to personally
visit the basement of the Central Court Building, which was like doing time in a
communal holding cell. In Port-au-Prince. During the summer. On election day. At
the height of a Tontons Macoutes
When I arrived for my research project, I wasn’t sure if
I was in the right place or if someone had opened a driver’s license substation
and child care center in Durant’s kitchen at lunch time. The sheer pandemonium
that reigned in the public area was exceeded only by the demographic,
socioeconomic and aromatic diversity of the three dozen or so people who were
shoehorned into it.
Ignoring as best I could the sea of human debris that
engulfed me, I spied a row of computer terminals along the south wall. I
couldn’t be sure of the vintage, but it looked like the first two had blown a
vacuum tube. The third displayed 24 scrolling rows of
Press F1 to Contin@@@@@@@@@, the fourth was
occupied by a furtive-looking character talking into his shirt cuff, and the
fifth was unattended, proving that God does indeed have a plan for my life (and,
I briefly feared, that it included infecting me on this day with a lethal
airborne virus that would leave me in a state of Job-like torment).
Using my briefcase as a cow-catcher and my Almond Joy
wrapper as a surgical mask, I lowered my head and steamed west, slowed only
briefly by a trio of shrieking, undermedicated urchins whose mother’s interest
in reading about Snoop Dog and Debbie Reynolds’ love child won out over her
presumed wish to keep them from being mashed into the indoor-outdoor carpet that
looked like it had been recycled from a movie theater.
Four hours later I, too, was shrieking and
undermedicated, but I had what I came for: the name of every mouthpiece who,
during the previous five years, had filed or answered a lawsuit in Maricopa
County Superior Court on behalf of one of the Big 250.
The news that I delivered to my client was warmly
received: that there was virtually no apparent relationship between company size
and firm size, and that several of the Valley’s largest companies were as likely
to use a litigation boutique or sole practitioner as they are to hire a major
If those little tidbits interest you, so should this
one. Of the 250 companies that I researched, 72 had been involved in two or more
lawsuits in five years. Of those 72 – this is where it gets good – only 11 used
the same attorney or firm more than once.
That’s just 15%. One-five. Shocking. So much for the
"marriages" between litigation firms and their clients. If most other types of
business could only get one out of six or seven customers to come back for more,
they’d be belly-up in no time.
A couple of weeks later, I conducted a focus group for
another firm. The group consisted of 15 business owners – some clients, some
not. The purpose of the session was to find out how those individuals choose
their legal help, what they like and dislike about working with attorneys, etc.
About halfway through the session, I thought I’d test
this bunch’s selection of litigators against the companies I checked at the
"How many of you own companies that have sued someone or
been sued in the last five years?"
Thirteen out of 15.
"Okay, of you 13, how many were involved in two or more
lawsuits in the last five years?"
Nine. Wow. More than half. Don’t these guys use an
attorney for anything except litigation?
"OK, good ... I guess. Now, of you nine, how many used
the same attorney or law firm more than once?"
Two out of nine. Twenty-two percent. Better than the
250-company sample, but not by much.
"To you who had multiple lawsuits but used a different
attorney each time, allow me to ask this question: What gives? I mean, was it
because you lost the first case and wanted better talent the next time around?"
To my surprise, the won-lost record wasn’t a major
consideration. In fact, five of the seven dumped a winning lawyer. These were
their consensus answers:
First, "Litigation isn’t much fun. A lawsuit is such a
negative experience that, win or lose, when it’s over, my attorney is part of a
bad memory. The next time I’ve got a legal battle, I kind of want to fight it
with a new guy."
Second – pay attention, now – "When the lawsuit’s over
and I pay my bill, I never hear from my attorney again. I feel as though he has
fired me. By the time the next lawsuit rolls around, I’ve met another lawyer who
seems like he could do the job, and I use him instead."
Treating Client Infidelity
There may not be much you can do about the first
problem, but the second one’s a different story.
One of the keys to hanging on to a litigation client is
to keep your relationship alive between lawsuits. If he was more or less happy
with you in the first trial, he should use you again if he thinks you're up for
it. And if, in the first trial, he was upset with you or the result, maybe the
only way to salvage the relationship is to spend some time with him after he’s
cooled down. (He still may not be wild about you, but if you’re the best – or
only – trial lawyer he knows, inertia may cause him to hire you again.)
There’s no secret formula for keeping in touch with
litigation clients, but it does require discipline, effective use of Outlook
and, in some cases, courage. Here are a few practical tips:
Bribe him. After the end of the trial, send him a
nice present. Restaurant gift certificates are nice, as are food baskets, wine,
and sport utility vehicles.
Have a heart-to-heart. A month or so after the end of
the trial, invite the client to lunch or make an appointment to visit him. Talk
about the case. Ask him if there’s anything he wishes you’d done to achieve a
better result or make him happier.
Acknowledge any mistakes (without giving him
any silly ideas about suing you for malpractice) and, if he has any
misconceptions about your performance, gently set him straight. Tell him you
value him as a client and hope that if he needs a litigator again he’ll keep you
Bribe him again. Wine and dine him occasionally, if
for no other reason than to ward off the competition. And keep him on your
holiday card and gift list.
Become his counselor. Dispense some preventive
medicine. Every year or so, have a general discussion with him about his
company. Visit his place of business. Find out if his personal and business
affairs, such as tax planning, succession planning, buy-sell agreements,
employee manuals, etc., are in order. If they’re not (they won’t be), introduce
him to one of your partners. Do whatever you can to keep him lawsuit-free;
eventually he’ll get in trouble anyway, and when he does you’ll be there.
Stroke him. Finally, don’t be shy about telling him
again that you’re proud to be his attorney (even if, truth be told, you’d rather
come down with a case of cholera than go into court with him again). Those are
the kinds of statements that help cement a relationship and can keep you in his
good graces while you’re waiting for his next lawsuit.