Clients have faint understanding of what lawyers do. This is an indictment, considering how much communicating lawyers do with this captive and interested audience. In fairness, clients accept lawyers’ advice like street food: what goes into it can be too much information. Clients want to find lawyers’ advice useful. Lawyers’ correspondence, like a truffle, is valuable not for what it is but for what it does.
Still, we train lawyers to compose letters that resemble dishes served up by arrogant chefs: high in professed value, bulked up with disclaimers, and low in relevance to the client’s objectives or problems. Here’s a (fictitious) case in point:
Dear Mr. Cetious:
In our considered opinion, you are safe to launch your Crazy Lobsters app. Our independent expert, Stéphane de Boulots, reports there is insufficient similarity between the design of your app and Upset Avians, and enough distinctiveness in the name to avoid a judgment for infringement.
If we are wrong in this, your competitor may obtain an injunction to restrain you from uploading it to vendor sites, and recover damages or an accounting of all profits. If we are wrong even still, your competitor may bring suits and criminal prosecutions against your officers and directors personally for punitive damages arising from their directing the company’s development of an infringing software application. Once in court, anything can happen, and our opinion counts for little.
To gain a true appreciation of the various intellectual property monopoly rights enjoyed by your rival and your ability to put out a competitor, we attach a copy of our law student’s memorandum. The memo interestingly surveys the tension, since the enactment of the 1709 Statute of Anne, between the legitimate rights of creators to control and profit from their works and the benefit to the public of a free market.
Yours truly,
Lee Akazaki
Cleverer than Thou LLP
Dear Mr. Akazaki:
Thank you for your report, and for the attached 24-page legal memo. Finding it in my inbox before I left the office for the weekend meant I could print it out and read it on the train home. Your opinion letter remained on my mind all weekend, and it made it easier to go into work on Monday morning, to write you this instruction letter. [1]
Your student’s century-to-century survey traced from English Chancery Court reports about some statute named after Queen Anne had so many twists and turns, what with courts changing their minds all the time, it was such a thriller to read. Who knows what could happen! (We should like to know.) [2]
What are the consequences of our new product launch, targeted for June 2012? Perhaps you can give me a call before I have to face my board of directors with all of these perils you identified in case your opinion about potential infringement suits turned out to be wrong. What, should I tell the board, is the most responsible course? How much should we set aside for a litigation contingency fund? When do you expect we will be able to release the money? (Is there a statute of limitations?) [3]
Yours truly,
F.A. Cetious,
General counsel and secretary,
Les homards insensés S.A.
Footnotes:
[1] You and your client want one thing in common: a life
Unless circumstances dictate, lawyers’ letters arriving at the end of the week mean you value your weekend more than your client’s. Instead, tell your client the report is almost done, and ask whether she wants it now, or on Monday. Clients like to be given choices.
[2] You learned something while researching the problem, or you’re really proud of your student’s research skills. Keep your elation to yourself.
Clients already feel they pay you by the word. They certainly don’t want to feel they are paying for on-the-job training, too. Don’t put in the report citations or lengthy legal memos only useful for you or betraying that you learned something about the law. Remember, you are the expert.
[3] Don’t make it so obvious you’re expecting the client to pay to cover your backside.
There is an expectation that outside counsel serves as the outlet for the naysayers of an organization. It is not helpful to present advice in terms of its probability of being right or wrong. You are presumed to be authoritative. Why put your legal ability in issue?
Clients loathe lawyers’ disclaimers, because they are tedious, add no value, and imply you are able to walk away when things go wrong. Disclaimers are for coat checks and bungee jumps. Clients want to know what matters, including less probable outcomes.
Don’t play devil’s advocate with yourself in view of your client. If things do go wrong, gratuitous disclaimers provide a roadmap for the drafter of a professional negligence suit against you. Well-considered and thoroughly researched advice remains your best defence.
Clever v. Useful: Which one will encourage repeat business?
The opening example set the lawyer up for client anger. No matter whether you act for individual, institutional, or corporate clients, there are two ways the client can view your retainer: either as a “necessary evil,” or as an instrument of legal empowerment.
The traditional opinion style in the example above conforms to an outdated view of legal opinions as of a “green” or “red” light. Lawyers, in this model, sign off on a proposed course of action as being “legal” or “not legal.” The needs of clients for legal advice have evolved. If the customer’s needs differ from the services she receives, that will be a recipe for dissatisfaction. It doesn’t matter how great the services might be intrinsically.
Contrast the foregoing with the following style. The law, especially in a knowledge industry, is now a factor of production (formerly known as “land and labour”). The client still wants to know whether you feel the product will withstand lawsuits. (Or, if your client is the incumbent, pre-emptive litigation may already be part of an assertive business plan.) The modern lawyer’s letter will not only state an opinion of law. It will also contextualize the client’s legal questions in a narrative of outcomes:
Dear Mr. Cetious:
Your company must decide whether to launch your Crazy Lobsters app on sound business principles and without infringing the legitimate rights of competitors, including the makers of the leading app, Upset Avians.
You are concerned about design similarities between the two potentially rival games. Our independent expert, Stéphane de Boulots, has identified four out of 10 features in common. The case law supports our view that your product would likely withstand an infringement suit by the makers of Upset Avians. The more immediate risk of the product launch will be a tactical strike by the market incumbent. Indeed, for many industry giants, a 20- to 40-per-cent chance of success is often seen as the basis for asserting more exclusivity than the law actually allows. There is insufficient litigation history on your potential rival to get a reading on the aggressiveness of their intellectual property strategy against newcomers.
The line between the legitimate rights of competitors and infringement is not always clear. The expert’s opinion is helpful in shielding your officers, directors, and employees from personal exposure to liability. Unfortunately, in our experience some aggressive parties and/or counsel have been known to name individuals together with their corporate employers, as an intimidation tactic or as a means of duplicating examination for discovery.
Yours truly,
Lee Akazaki
Your Valued Partners LLP
Conclusion and disclaimers
A lawyer’s letter to a client, whether or not it expresses an important opinion, must fit within the mission behind the retainer. Rarely does a client want simply a yes or no opinion, followed by a list of disclaimers. Model your objective expertise into the business objectives of your client, or to life-changing decisions involving individuals. Understanding why your client needs you is never a bad start.
The foregoing advice in this The Accidental Mentor column is for entertainment and research purposes only. References to Crazy Lobsters, Les homards insensés, or Upset Avians are fictional and not intended to reflect the author’s or the publisher’s true opinions about shellfish or winged animals. Sample letters are compressed in content: expect each paragraph to represent 20 pages of type in a real opinion letter. If your clients prefer receiving turgid, self-important, and exclusion-laden “lawyers letters,” and have rejected as “newfangled” your attempts to provide value through clearly expressed, objective, and purpose-driven missives, go back to what they’re used to. The writer of this column, its publishers, or advertisers accept no responsibility whatsoever and an entirely different post will appear in this space next month.
Still, we train lawyers to compose letters that resemble dishes served up by arrogant chefs: high in professed value, bulked up with disclaimers, and low in relevance to the client’s objectives or problems. Here’s a (fictitious) case in point:
Dear Mr. Cetious:
In our considered opinion, you are safe to launch your Crazy Lobsters app. Our independent expert, Stéphane de Boulots, reports there is insufficient similarity between the design of your app and Upset Avians, and enough distinctiveness in the name to avoid a judgment for infringement.
If we are wrong in this, your competitor may obtain an injunction to restrain you from uploading it to vendor sites, and recover damages or an accounting of all profits. If we are wrong even still, your competitor may bring suits and criminal prosecutions against your officers and directors personally for punitive damages arising from their directing the company’s development of an infringing software application. Once in court, anything can happen, and our opinion counts for little.
To gain a true appreciation of the various intellectual property monopoly rights enjoyed by your rival and your ability to put out a competitor, we attach a copy of our law student’s memorandum. The memo interestingly surveys the tension, since the enactment of the 1709 Statute of Anne, between the legitimate rights of creators to control and profit from their works and the benefit to the public of a free market.
Yours truly,
Lee Akazaki
Cleverer than Thou LLP
Dear Mr. Akazaki:
Thank you for your report, and for the attached 24-page legal memo. Finding it in my inbox before I left the office for the weekend meant I could print it out and read it on the train home. Your opinion letter remained on my mind all weekend, and it made it easier to go into work on Monday morning, to write you this instruction letter. [1]
Your student’s century-to-century survey traced from English Chancery Court reports about some statute named after Queen Anne had so many twists and turns, what with courts changing their minds all the time, it was such a thriller to read. Who knows what could happen! (We should like to know.) [2]
What are the consequences of our new product launch, targeted for June 2012? Perhaps you can give me a call before I have to face my board of directors with all of these perils you identified in case your opinion about potential infringement suits turned out to be wrong. What, should I tell the board, is the most responsible course? How much should we set aside for a litigation contingency fund? When do you expect we will be able to release the money? (Is there a statute of limitations?) [3]
Yours truly,
F.A. Cetious,
General counsel and secretary,
Les homards insensés S.A.
Footnotes:
[1] You and your client want one thing in common: a life
Unless circumstances dictate, lawyers’ letters arriving at the end of the week mean you value your weekend more than your client’s. Instead, tell your client the report is almost done, and ask whether she wants it now, or on Monday. Clients like to be given choices.
[2] You learned something while researching the problem, or you’re really proud of your student’s research skills. Keep your elation to yourself.
Clients already feel they pay you by the word. They certainly don’t want to feel they are paying for on-the-job training, too. Don’t put in the report citations or lengthy legal memos only useful for you or betraying that you learned something about the law. Remember, you are the expert.
[3] Don’t make it so obvious you’re expecting the client to pay to cover your backside.
There is an expectation that outside counsel serves as the outlet for the naysayers of an organization. It is not helpful to present advice in terms of its probability of being right or wrong. You are presumed to be authoritative. Why put your legal ability in issue?
Clients loathe lawyers’ disclaimers, because they are tedious, add no value, and imply you are able to walk away when things go wrong. Disclaimers are for coat checks and bungee jumps. Clients want to know what matters, including less probable outcomes.
Don’t play devil’s advocate with yourself in view of your client. If things do go wrong, gratuitous disclaimers provide a roadmap for the drafter of a professional negligence suit against you. Well-considered and thoroughly researched advice remains your best defence.
Clever v. Useful: Which one will encourage repeat business?
The opening example set the lawyer up for client anger. No matter whether you act for individual, institutional, or corporate clients, there are two ways the client can view your retainer: either as a “necessary evil,” or as an instrument of legal empowerment.
The traditional opinion style in the example above conforms to an outdated view of legal opinions as of a “green” or “red” light. Lawyers, in this model, sign off on a proposed course of action as being “legal” or “not legal.” The needs of clients for legal advice have evolved. If the customer’s needs differ from the services she receives, that will be a recipe for dissatisfaction. It doesn’t matter how great the services might be intrinsically.
Contrast the foregoing with the following style. The law, especially in a knowledge industry, is now a factor of production (formerly known as “land and labour”). The client still wants to know whether you feel the product will withstand lawsuits. (Or, if your client is the incumbent, pre-emptive litigation may already be part of an assertive business plan.) The modern lawyer’s letter will not only state an opinion of law. It will also contextualize the client’s legal questions in a narrative of outcomes:
Dear Mr. Cetious:
Your company must decide whether to launch your Crazy Lobsters app on sound business principles and without infringing the legitimate rights of competitors, including the makers of the leading app, Upset Avians.
You are concerned about design similarities between the two potentially rival games. Our independent expert, Stéphane de Boulots, has identified four out of 10 features in common. The case law supports our view that your product would likely withstand an infringement suit by the makers of Upset Avians. The more immediate risk of the product launch will be a tactical strike by the market incumbent. Indeed, for many industry giants, a 20- to 40-per-cent chance of success is often seen as the basis for asserting more exclusivity than the law actually allows. There is insufficient litigation history on your potential rival to get a reading on the aggressiveness of their intellectual property strategy against newcomers.
The line between the legitimate rights of competitors and infringement is not always clear. The expert’s opinion is helpful in shielding your officers, directors, and employees from personal exposure to liability. Unfortunately, in our experience some aggressive parties and/or counsel have been known to name individuals together with their corporate employers, as an intimidation tactic or as a means of duplicating examination for discovery.
Yours truly,
Lee Akazaki
Your Valued Partners LLP
Conclusion and disclaimers
A lawyer’s letter to a client, whether or not it expresses an important opinion, must fit within the mission behind the retainer. Rarely does a client want simply a yes or no opinion, followed by a list of disclaimers. Model your objective expertise into the business objectives of your client, or to life-changing decisions involving individuals. Understanding why your client needs you is never a bad start.
The foregoing advice in this The Accidental Mentor column is for entertainment and research purposes only. References to Crazy Lobsters, Les homards insensés, or Upset Avians are fictional and not intended to reflect the author’s or the publisher’s true opinions about shellfish or winged animals. Sample letters are compressed in content: expect each paragraph to represent 20 pages of type in a real opinion letter. If your clients prefer receiving turgid, self-important, and exclusion-laden “lawyers letters,” and have rejected as “newfangled” your attempts to provide value through clearly expressed, objective, and purpose-driven missives, go back to what they’re used to. The writer of this column, its publishers, or advertisers accept no responsibility whatsoever and an entirely different post will appear in this space next month.