Solo Contendere

Involve them, but don’t let them suit up

With fantasy football drafts just over the horizon, I have my radio more or less constantly tuned to KFAN. Not a lot of legal news gets reported on The FAN. Somewhere between player injury news, gossip, and talk about the Vikings’ preseason and how we’re going to do this year, however, the guys had an interesting discussion about the NFL’s new rule on television blackouts. The NFL this year has decided that it will allow games to be broadcast in a local market when only 85 percent of the tickets to that game are sold. That’s a significant change from previous years, when unless the team completely sold out its stadium, local coverage would be blacked out.

It’s NFL-wonk talk for “no one goes to the game anymore.” One of the morning crew at KFAN even went as far to suggest that it might not be long until stadiums no longer exist; completely supplanted by television coverage. He is mistaken.

More on that in a minute.

The first and, so far (knock on wood), only time I was ever fired by a client, I did everything right. Everything except one: I didn’t tell him I was doing everything right.

I was happily plowing my way through the case, which was a felony that seemed unavoidably bound for trial and where I could see that my client had a great argument at trial. It was the sort of case a “young” trial attorney lives for (I use the word “young” here loosely). I had gathered all the discovery, had an investigator gathering independent information, and even was taking the time to help my client with a corollary issue the criminal charges had caused. I had been giving him the required client updates, to let him know what I was doing. In short, I thought, he would he happy as a clam with everything I was doing for him, and his prospects for a good result.

I was horribly wrong.

Late one evening, not long after the Omnibus hearing, I got one of those nasty emails that every attorney — especially criminal attorneys — get from their clients now and again. When I take out all the profanity and hyperbole, two pages boiled down to “You’re not fighting hard for me, and you’re fired.”

That stung. A lot. It was my first time, and for a while afterwards I kept going back over the case, trying to figure out what I had done wrong and coming up with nothing. I had done everything right. Except I hadn’t, because my client didn’t know that.

The right amount of ‘we’

Back to football.

So why won’t we ever completely replace stadiums with television coverage? Why is every sporting event, from the NFL to basketball to NASCAR — NASCAR! — played in front of a live audience? It’s not the game itself; whether you’re at the stadium or at home on your couch, you can still watch the game. In fact, you can usually see it better at home. The reason stadiums will never become obsolete is that the entire experience of watching at home is not intended to replace the stadium. Rather, it’s intended to make you feel as if you’re at the stadium.

When you go to a game, whether it’s football or basketball or racing, there’s an energy to being there. Feeling the vibrations through the stadium as fans stamp their feet; hearing the crowd hold their breath as the last-second shot goes up and then roar when it goes in; cheering in tense, morbid fascination as a blur of cars flies by only inches apart, always mere fractions of a second away from a deadly crash. When we go to a game we are not just watching it, we are part of it. Watching on television, we feel part as well—not of the game, but of that live stadium audience feeling, hearing, cheering. That sort of participation is enough that many fans say “we” when they mean their team. “We,” the players and fans, win or lose together.

Clients want to feel that too. That was the lesson I took from that first experience of being fired. It’s not enough simply to know what’s going on, although that is certainly the minimum ethical standard. Especially in high-emotion practice areas like criminal, personal injury, or family law, clients want to understand the case, and be connected with what is going on. It’s not enough merely to let them know what is going on in their case. They want to feel the “we.”

At the same time, it’s usually a mistake to let them on the field. Everyone has had that client (or six) that thinks that he knows best what legal arguments to make or what evidence to present. Ignoring our clients is a bad idea, but doing exactly what they want even if we disagree is just as bad. Transactional work is somewhat different, of course, but in a litigation context, we need to make our clients participants without making them players. To make them feel that they’re in the stadium. The “12th Man.” And for solos, this can be a hard line to walk.

Walking the line

As I’ve written many times before, one of the biggest advantages solos have is a personal relationship with clients. Often small firms don’t even have a support staff; every meeting, letter, and phone call with the client is directly with the attorney. And I’ve argued — and still believe — that this can be helpful because it makes clients feel more like they are “part of the team”: a sports metaphor that is used as often in business and the law as it is in sports. We can’t turn in that advantage.

At the same time we can’t, as I did with my client, allow them to feel as if they’re sitting at home on their couch watching what is, after all, their future play out on the screen. The temptation for a solo who is juggling a dozen things at once simply to give clients the ESPN highlight reel of their case is equally easy, and equally bad. No matter how busy we are, clients deserve more information from us than they could get by following a Twitter feed of their case.

As with almost everything in the law, there is no hard and fast rule about how to walk this line. The simplest way is also the most obvious, but sadly underused. Just asking the client “Do you have any questions?” or “What do you think?” can go a long way. Yet it’s surprising how often I overhear conversations outside the courtroom that instead end “So that’s what we’re going to do. Are you ready?”

Solos can and should trade on our ability to make clients feel like their problems have been heard and understood, and there is an attorney there personally ready to help them with their legal issues. When we do, it makes them more satisfied with the results. The wins are better and the losses easier to take because they felt a part of it. “We” win or lose, together.