Clients don't like surprises

For clients, litigation carries an emotional punch like few other incidents in their lives.

Whether it's a highly publicized corporate/commercial battle or two individuals locked in a he-said/she-said conflict, the highs and lows of enjoining battle can be dramatic. They can also create an opportunity for litigation lawyers to help their clients through the process.

"What clients dislike more than anything else are surprises," says Gary Hodder, a Toronto-based litigation partner at Polten & Hodder and member of the executive of the civil litigation section of the Ontario Bar Association.

 "They view surprises as far worse than high fees or even a bad result [of the litigation]."

Clients like to plan; litigation lawyers must, at all times, canvass all possibilities on the horizon as to potential outcomes. They must also let the client know immediately as new potential outcomes may become apparent, says Hodder.

"Tell the client what he needs to know for the coming conflict," he says. "At the risk of sounding too Churchillian, the client really is girding for battle."

To assist his clients, Hodder has developed a whole range of aphorisms, such as, "Your lawsuit should be in a constant state of decision," and, "You must always have an operating theory of your case but always be prepared to change it in an instant."

He also tries to lighten his clients' psychological load through what he calls a "lively," light-hearted approach. The firm's web site,, offers lists for clients to live by, one of which is titled, "Top 10 Mental Health Tips for Successful Litigating."

Listed among Hodder's tongue-check suggestions are, "Be prepared to develop elaborate strategies and a master plan and then spontaneously abandon the whole thing in favour of a completely different approach," and, "Develop an open and trusting relationship with your lawyer or else abandon all hope."

"From my perspective, you need to be brutally honest with clients about the realities of the litigation," says Peter Henderson, a partner at Kramer Henderson LLP in Toronto and chairman of the OBA's civil litigation section.

"It puts everybody [client and lawyer] is a very difficult position if you are not - you can't soft-pedal about the merits of the case."

Pushing off bad news or obscuring potential problems won't cut it either, says Henderson.
"The conflict between what you've been telling the client and the reality of the situation will become apparent over time. If the client has the wrong impression about the case, the crows are going to come home to roost. There's no way around it."

At the same time, clients are becoming more results-oriented, says Hodder.

In a business world where executives are daily called up to explain themselves to shareholders and hike that bottom line, achieving goals has taken on urgency. That may explain, to some degree, why clients today are better informed about litigation.

 "One time a very sophisticated client who had been involved in a lot of litigation made what I considered to be an extremely insightful comment, for a non-lawyer, about his current litigation," remembers Hodder. "When I pointed this out to him, he said, 'Gary, I paid more for my legal education than you have."

In part, clients may be driven to focus on results - along with a tendency to better inform themselves about the issues surrounding the litigation - due to the rapidly escalating costs of litigation.

Sophisticated clients know there are ways to keep costs down, says Hodder. The firm's web site has another list that helps clients control costs: "Top 10 Ways to Save on Legal Fees."

Still at the core of helping your client is the key concept of ongoing communication, says Henderson. "Clients want, and deserve, constant communication." Keeping clients up-to-date goes a long way in helping them through the ebb and flow of litigation.

"You can never communicate too much," agrees Hodder, who often suggests that clients, and their employees, take on as much of the administrative work involved in the litigation as possible. This can involve aspects related to information gathering and sometimes even document preparation, he says.

Not only is this cost-effective, it also keeps the client very effectively in the loop and at times can help the client locate new and important information pertinent to the case.

At the end of the day, Hodder tries to get across to clients a cardinal rule in his mental health list: "Ensure that there is always something in your life more important than your lawsuit," which, he admits, for clients in the heat of battle is sometimes very hard to do.

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