Friday, May 31, 2013

The Employee's First Client Meeting

I am taking a little bit of a different approach with this post, with a focus on representing employee clients in competition litigation.

When I first talk to a new client who has a legal problem involving a non-compete (or a related issue), there is much to consider in a short amount of time. The client frequently is overwhelmed. Her mind is going in many directions. He or she may never have hired an attorney before.

When this is the case, clients often want to know what to expect and how to prepare for an initial meeting.

Obviously, every attorney is different. But I think these rules generally apply (both to non-compete cases and to other types of engagements). If individual clients understand these points, they should feel more at ease before meeting with an attorney:

  1. Have your documents ready. At the risk of stating the obvious, clients should have relevant documents available for counsel to review. These should include, at a minimum, the following: employment contracts, handbook provisions, cease and desist letters, the complaint and related court papers if a suit is on file, and the contents of any personnel file. My personal preference is to receive these before the meeting, provided the engagement letter is signed. Which leads me to Rule #2...
  2. Review the engagement letter. My standard practice before a meeting with a new client is to send them the engagement letter for review. I prefer to have any questions about retainers, fees, and the scope of the engagement addressed up front before the meeting, so our first meeting is focused on legal advice.
  3. Develop a list of questions you want answered. Clients sometimes are surprised by the direction meetings with counsel take. And it is frequently the case that they forget to ask questions that are important to them. It is worth taking the time to type out a list of questions ahead of time. I prefer the client e-mail these questions to me beforehand so I can think about how I want to answer them. The questions themselves will alert me to other issues I may need to explore. Finally, they often help guide the meeting and enable a client to feel as though they're participating actively in the meeting, rather than just being questioned. My experience is that clients - whether new or seasoned to litigation - ask very smart questions.
  4. Let your attorney understand the industry. Competition disputes (unlike most civil litigation) require the attorney to understand the business. This means clients need to help educate their lawyer learn about the competitive forces at work and the details of how the business operates. I am very direct in telling clients to stop using industry jargon and reduce "inside the beltway" concepts to plain English. If I represent that client, a judge will demand the same of me in court.
  5. Disclose all facts - good and bad. Clients need to understand that their attorney is their personal counselor and will represent them in a non-judgmental manner. Too often, clients "hide" bad facts. Lawyers are not, and shouldn't be, cheerleaders. We need to know if there are problematic documents out there or facts that may prove damaging in a lawsuit. Only then can the client receive proper advice.
  6. Expect follow-up. Many individual clients want all the answers at an initial meeting. Sometimes, that's not possible. Your attorney may identify an issue that needs some legal research. (Competition disputes are notorious for this.) He or she may need to understand the industry better (particularly if it's not explained well enough at the initial meeting). And it's usually better to make important decisions on litigation strategy after thinking through them for a while.
  7. Understand your best, worst, and most likely outcomes. A judge once told me that the best lawyers advise their clients as to these three outcomes. I agree wholeheartedly. Clients need to understand all three. If the lawyer is not giving you all three and explaining them in a concise manner, you need a new lawyer.

No comments:

Post a Comment