February 13, 2012
Lawyer-Client Communication as a Process
What type of blogger would write a post titled, "Lawyer-Client Communication is Just Another Process to Improve"? To my mind, a very forward-thinking one. His name is Ron Friedmann, and he is an expert on technology and law. His post just appeared on this blog, Strategic Legal Technology. In my Google Reader, Ron's blog is in a Top 10 spot because, frankly, everything he writes is worth reading.
In his post, Ron makes the point that you can't improve something that you don't understand. So step #1 is taking the time to deconstruct and analyze. Drawing an example from a recent article in the Association of Corporate Counsel (ACC) Docket, Ron writes:
[J]ust saying “you have a 60% percent change of winning” raises three problems. First, unless a client faces multiple similar cases, it’s hard to understand what that single probability measures. Second, this probability - whether or not accompanied by another common measure, expected value - does not communicate the range of possible outcomes. An 80% chance of winning may be irrelevant if there is a 5% chance of a company-killing outcome. And third, our word choice influences how we think and how we decide.
On this third factor, Ron cites an example from the recent book by Nobel Laureate Dan Kahneman, Thinking, Fast and Slow, where numerous studies have shown that medical patients respond in very different way to "90% chance of success" versus "10% chance of mortality." A host of "fast-thinking" processes are at work that keep the mind from treating these two statements the same -- fast thinking being a blend of emotions and mental short-cuts that don't bother to check for logical consistency.
Kahneman demonstrates that these errors are a recurring part of the human condition -- indeed, he and his long-time co-author, Amos Tversky, agreed that they would not study a cognitive bias unless it first passed a single test: the bias had to be observable in Kahneman's and Tversky's own thinking. As Kahneman admits in the book, "We were studying ourselves." So good luck to lawyers who think they are too smart to make mistakes.
The host of cognitive biases gumming up lawyer-client communications reminded me of this wonderful cartoon that was included in my Legal Project Management and Process Improvement Seminar I took back in 2010 [click to enlarge -- it's worth it].
I think Ron is 100% right. It is possible to turn lawyer-client communication into a process, or more precisely, a set of interdependent processes. It requires a whole lot of thinking up front -- to many law firms, this is a quandary because the time cannot be billed. But hey, it is a multi-million dollar problem.
Further, when the processes are complete and deployed (note: processes are never really complete, so let's call this the 2.0 version), it won't feel mechanical. Instead, it will feel efficient, effective and respectful. The client who feels understood and responded to is the client who returns with more work and tells his or her friends about the experience.
[Posted by Bill Henderson]
The Client Advisory Board of the New York State Defenders Association addresses communications and other aspects of the client-attorney relationship in their Client-Centered Representation Standards. "Clients Want a Lawyer Who," among other things, "Listens to them and represents them with compassion, dignity and respect; Meets with them and visits them when incarcerated, accepts phone calls, answers letters, and takes time to counsel and explain in a manner that communicates understanding and respect; Uses language in court, legal writing, and conversation that is clear and understandable to the client; [and] Works and strategizes in collaboration with his or her client." http://www.nysda.org/docs/PDFs/Pre2010/05_ClientCenteredStandards.pdf
Posted by: Mardi C | Feb 14, 2012 7:26:17 AM