Years ago during a visit with a solo attorney, we were discussing the importance of effective client screening when I learned that this attorney’s approach was to look at the shoes potential new clients wore. He swore that you could tell a lot about a person by their personal preference in footwear. Who knew! For some attorneys, client selection is almost an art form. The solo mentioned here turned out to be a member of that group. Others may or may not run through various informal lists of questions during intake trying to identify those potential problem clients, and then there is the group that seems to muddle through the entire process with only a hope they’ll eventually get paid for whatever work they end up accepting. Particularly if you’re a member of this latter group, I can share some good news. There is a better way and it’s called client screening.
Effective client screening is all about trying to identify the good clients and weeding out all those who simply aren’t. While there isn’t necessarily one correct way to do this, developing a standard set of questions to think about during that first meeting can go a long way in helping you and those with whom you practice make sound business decisions. With this in mind, I offer the following screening questions. These questions are just a place to start and should be reviewed and updated over time as your desires and practice dictate. You might also review any past problem client matters to see if there are any commonalities or warning signs present there in order to identify additional questions that might be worth adding to your firm’s screening checklist.
First we’ll start with a few questions that focus on you.
Do you have the time to take this new matter on and give it your full attention?
Be realistic here and remember that our Rules of Professional Conduct are in play. The client will expect, and in fact deserves, your full attention to their matter. If that’s not possible just say no; and if saying no is hard, it’s time to learn how to do it respectfully.
Do you have the necessary expertise and experience to handle the matter?
If yes, great. If no, can you responsibly come up to speed by working with a trusted colleague or researching the law and will the client be good with that? The bottom line is this. Don’t dabble. There is no such thing as a simple will or a cut-and-dried personal injury case. If you aren’t prepared to handle the difficult matters in any given area of practice, don’t agree to take on the apparently simple ones. Too often these matters only appear to be simple because you don’t know what you don’t know and therein lies the problem.
If it’s a contingency fee matter, do you have adequate funds to take it on?
New matters often look their best on day one and, unlike fine wine, they often don’t age well. If the quick settlement doesn’t end up happening you want to avoid unintentionally placing yourself in a situation where case management decisions are being dictated by economics instead of legal judgment. That sounds like a conflict problem to me.
If this is a significant matter is your firm properly staffed and equipped to take it on?
While major cases can be intellectually stimulating, exciting to be involved in, and are financially rewarding, they also bring with them serious time demands and on occasion a real battle. For example, can your firm handle the situation if the other side drops off literally a truckload of documents in response to your discovery request? Will the case impose an undue burden on staff? Questions like these need to be asked and answered. Have a thorough discussion with and obtain buy in from all involved so that everyone goes in eyes wide open. Also, don’t overlook the necessity of determining how this case will impact your firm’s ability to continue to meet the needs of all your other current clients because that’s where hidden trouble lies.
Now it’s time to focus on the client.
Can the prospective client afford your services?
Making this determination is not optional; it’s your responsibility. In addition, understand that there is a difference between sharing what your hourly rate is and giving an initial realistic estimate as to what the entire fee could end up being. Taking on a client who cannot afford your services serves no one. It’s a fee dispute in the making, a collections problem regardless, and often ends up with your having to write off a significant portion of the bill. If this is a contingency fee matter, you might also ask yourself if this matter makes economic sense. For example, if it is likely that the client will come out with less money that what will be owed to you, I’d seriously question moving forward for similar reasons.
One special caution here. If you ever hear a statement along the lines of “I don’t care about the costs, it’s the principle that matters,” run. A colleague once told me that they don’t do indignation, they do litigation. That’s worth remembering because the client’s principles will go out the window when the time comes to pay up; and this will be doubly true if you never even tried to determine if your client had the financial wherewithal to pay the bills in a worst case scenario.
Has the prospective client had several different attorneys?
When a prospective new client states that he needs a new lawyer because the first two didn’t do a damn thing and the last one was just stupid, heed the warning! The client may wish to avoid paying fees, be impossible to satisfy, have unreasonable expectations, have an agenda that’s to be followed, or believe he knows more about the law than you do just for starters. You are also hearing how he will be speaking about you in due time.
Has the prospective client talked with any other attorneys prior to coming to see you?
I asked this very question to potential new client a number of years ago and was told yes. In fact, he had met with thirteen other lawyers prior to finding my name in the phonebook. I politely said thanks but no. While I never learned who all those lawyers were I was told a few names and they were very reputable attorneys in town. There was a reason everyone was saying no and I trusted their judgment. After all, if it was a good case the potential client would have been given an appropriate referral much earlier on.
Is the prospective client a family member or friend?
Don’t fool yourself. If the work is not satisfactory in their eyes, favor or not, these clients can and will sue. Remember the saying “no good deed goes unpunished?” This is a situation where that holds true far too often. If you decide to step into this situation treat these clients as real clients which means document the file as you would with any other client. In addition be careful about being pulled into something you are not comfortable handling. If you wouldn’t do the work for a stranger, you are not qualified to do it for a friend or family member.
Has the prospective client brought you the matter at the eleventh hour?
If yes, say no for two reasons. First, the client may have already tried to do a little self-help negotiating and mucked things up; and second, you don’t have the time to properly investigate the matter. Heaven forbid you miss a possible claim, defendant, or the filing deadline itself. Always keep Murphy’s Law, which is “Anything that can go wrong will go wrong” in mind. Don’t place yourself in a position where you might end up paying for your client’s procrastination.
While it may look like a great case, can you work effectively with this prospective client?
If you are unable to work effectively with someone during the initial interview, it’s unlikely to get better over time. You might look at their needs and behavior. If they will need lots of hand holding are you prepared to do that? If they really are having a hard time understanding all that you’re talking about are you willing to take the time to educate them so that they may meaningfully participate in the decision making process? Are they forthright and truthful with you or is their vagueness causing you to question their story? Remember that a case doesn’t get better after your opponent starts picking it apart. How have they treated your staff, and if you don’t know ask them? Intimidating, threatening, or rude behavior is not only an indicator of what’s to come but is also simply not acceptable. Are they argumentative, confrontational, or unwilling to listen? This suggests role clarity will be a problem. Have they provided concise and detailed contact information? If not, you may find them difficult to get a hold of if not completely impossible. Never forget that all legal work comes with a client and no one gets along with everyone, including you.
Mark Bassingthwaighte, Esq., is a Risk Manager for ALPS Property & Casualty Insurance Company and is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing content for the ALPS 411 blog. In his tenure with the company, Mark has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States and written extensively on risk management and technology. Mark received his J.D. from Drake Law School. He can be contacted at: firstname.lastname@example.org.